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ENGLISH LAW 
 
 AND 
 
 IRISH TENURE. 
 
 BY 
 
 FREDEIUCK WAYMOUTH GIBBS, C.B. 
 
 LONDON: 
 
 WILLIAM RIDGWAY, 169, PICCADILLY, W. 
 
 1870. 
 
 Pric* Two Shiilings. 
 
ENGLISH LAW 
 
 AND 
 
 IRISH TENURE 
 
 BY 
 
 FREDERICK WAYMOUTH GIBBS, C.B. 
 
 LONDON: 
 WILLIAM RIDGWAY, 169, PICCADILLY, W. 
 
 1870. 
 
Digitized by the Internet Archive 
 
 in 2008 with funding from 
 
 IVIicrosoft Corporation 
 
 http://www.archive.org/details/englishlawirishtOOgibbrich 
 
5PK2/9 
 
 ENGLISH LAW AND IRISH TENURE. ^ 
 
 No one can hope, at the present stag"e of the discus- 
 sion, to write anything* really new about the Tenure of 
 land in Ireland. The utmost to which a writer can 
 aspire is to g-roup the facts and information accessible 
 to every one in fresh combinations, and to place the 
 results of the accumulated evidence in some new light. 
 This is all I aspire to. I have been much struck by a 
 remark made to me by more than one Irish landlord, 
 in reference to some of the schemes which have been 
 lately proposed : — *' We hold/' they said, ^' our lands 
 '^ by g-rant or purchase under English law, and we 
 ^^ claim that the remedies adopted for Ireland should 
 " be in accordance with Eng-lish law.'' Every one must 
 feel the force of the remark, and must wish the reme- 
 dies offered by English law to be exhausted before 
 going beyond it. English law is not, and never was, 
 a S3^stem merely of inflexible rules in regard to tenure. 
 In feudal times, the age of its strictest rules, those 
 rules were modified by manorial customs, of which 
 our early law books have handed down many examples ; 
 and even in that age custom converted the tenure of 
 villenage into copyhold. In later times, equity and 
 customs of the country have come in, and English law 
 has scanned, with ever increasing sensitiveness, the 
 relations which the parties have themselves created, 
 
 B 
 
 133 
 
My object is to place the facts of Irish tenure by the 
 side of the principles of English law, and the decisions 
 of our Courts most nearly applicable, and to see what 
 help these principles and decisions afford us towards 
 dealing" with the past and legislating for the future. 
 
 We shall find^ probably, that our conclusions 
 must take the form of suggestions rather than of 
 positive enunciations of law, for the relations of 
 the parties in the case before us are embrangled, 
 and the dealings of the landlords of Ireland with 
 their tenants have resulted, if I mistake not, in a very 
 complicated state of accounts. The facts besides of 
 Irish tenure are varied, and not unfrequently asser- 
 tions regarding it made by one are contradicted by 
 another ; and on scarcely any point are the facts so 
 distinct as to allow of a general statement being made 
 without the introduction of large exceptions. I have 
 therefore stated nothing of importance except on the 
 evidence of witnesses speaking under responsibility, 
 and I have constantly preferred, at the risk of being 
 tedious to readers not deeply interested in the subject, 
 to let those witnesses speak in their own words, that 
 my readers may be able for themselves to gauge their 
 credibility. Still, I venture to hope that the investiga- 
 tions contained in these pages may prove neither useless 
 
 nor unniterestmg, 
 
 There is one point in which all who examine any 
 Irish question agree, that it is impossible to under- 
 stand the present without some reference to the past. 
 To the past, therefore, we must look, yet only so far 
 
3 
 
 as tlie past is distinctly connected with or illustrates 
 the present, and without allowing* ourselves to be led 
 astray by mere antiquarian research. 
 
 The course of our investio-ations takes us to the 
 epoch, as our starting" pointy when Eng-lish law was 
 elFectually introduced into Ireland. That epoch was 
 the reij^'n of James the First. The earlier condition 
 of Irish tenure is beat explained by the chang-es then 
 made. The two centuries and a-half since that epoch 
 fall of themselves into five periods : the period from 
 1603 to the rebellion of 1641, distinguished by the 
 settlement of Ulster 3 the period from 1641 to the 
 accession of Queen Anne in 1702, during* which the 
 Cromwellian settlement was made, and the settlement 
 of William the Third was beg-un; the period from 
 1702 to 178*2, the ag-e of the Penal Laws relating* to 
 tenure ; the period from 178'2 to the Famine of 1846; 
 and, lastly, the period from the famine to the present 
 hour. Each of these periods has contributed its share 
 to the present state of tenure ; but none as it appears 
 to me, a more important share than the period from 
 1782 to 1846. On the preceding* periods, therefore, 
 we will dwell as lightly as possible. 
 
 I. James the First began his reig*n with the fixed 
 intention of carrying* out, in the words of an Irish 
 Statute, the " happy uniting* of the Kingdoms of 
 England, Scotland, and Ireland, under one Imperial 
 Crown."* With this view, he determined to introduce 
 * 11, 12, and 13 Jac. I c. 6. 
 B 2 
 
Eng-Hsh law over the whole of Ireland. Before 
 his time Eng^lish law had been of force only over 
 the counties of Louth, Dublin, Meath, and Kildare, the 
 counties within the Pale, and over some of the Eastern 
 seaports. Beyond these limits the authority it had 
 once asserted had fallen into decay throughout nearly 
 the whole of Ireland, and the native or Brehon law 
 had been recognized as the law of the mere Irish. 
 Hence, when English law was introduced, the relations 
 between English law and Brehon law necessarily came 
 before the King's Courts and the King's government in 
 Ireland. Was English law to exclude Brehon law, or 
 to admit it as a particular custom ? There can be no 
 doubt that the Judges felt the importance of this ques- 
 tion, for they discussed it with great solemnity. Two 
 well-known cases, reported by Sir John Davies, the 
 Irish Attorney-General of that day, called ^' The case 
 ofTanistry" and '^ The Irish Custom of Gavelkind," 
 and some tracts written by him, contain the decision of 
 the Judges, and afford us our chief information on the 
 whole subject. We are told by him that the lands pos- 
 sessed by the Irish were divided into territories, each 
 under a chieftain ; and that the inhabitants of the 
 territories were divided into septs, each under its 
 chief. The ^^ chiefry " of the chieftain of a territor}^, 
 and of the chief of a sept ran in course of Tanistry 9 
 the possession of the inhabitants ran in course of 
 Gavelkind. By the custom of Tanistry, the chiefry with 
 the portion of land annexed to it went, on the death 
 of the chief, to the oldest and worthiest of his blood 
 
and surname, who was called the Tauist. By the 
 custom of Gavelkind, the lands of each inhabitant on 
 his death were subject, at the will of the chief, to 
 partition among' all the males of the sept. On the 
 death of any one holding* a considerable portion, the 
 chief assembled the sept, and having- thrown all the 
 shares into hotch-pot, made a new partition; not 
 assig-ning- to the son of the deceased his father's 
 portion, but allotting" to all the members of the sept 
 portions according- to seniority. The system, Davies 
 adds, caused frequent partitions, the removal of 
 tenants from one part to another, and uncertainty of 
 possession *, no civil habitations were erected, no en- 
 closures or improvements were made; and Ulster 
 especially, before the plantation of the Eng'lish Under- 
 takers, seemed all one wilderness. The custom, he 
 notices, had three other points repugnant to the 
 Common Law of England ; bastards succeeded as well 
 as legitimate children; wives of tenants were not 
 entitled to dower ; and daughters did not succeed in 
 default of male heirs. 
 
 The custom of Tanistry was brought before the 
 Judges in a claim for a castle in the county of Cork, 
 and its merits were carefully argued ; and though we 
 may smile at some of the reasons which had great 
 weight with them as feudal lawyers, it is impossible 
 not to agree in their judgment that the custom was 
 open to great objection, and was the cause of great 
 effusion of blood and of many other mischiefs. The 
 custom of Gavelkind was brought before them as 
 
matter of policy for their advice. They compared it 
 .with two precedents with which they were acquainted 
 — the g-avelkind of Kent and the g-avelkind of Wales. 
 It differed from the g-avelkind of Kent, a custom lono- 
 recognized in English law ; but in the three points last 
 noticed, it resembled the gavelkind of Wales. Now the 
 history of Welsh tenure is remarkable. When Edward 
 the First incorporated Wales with England, he caused 
 the laws and customs used in Wales to be rehearsed in 
 the presence of his Council, and some he abolished and 
 some he allowed, and othere he reformed.* Among 
 the last was Welsh gavelkind, Avhich he stripped of the 
 three peculiarities which the judges found in Irish gavel- 
 kind 3 and, thus reformed, the custom existed till it 
 was put an end to by a Statute of Henry the Eighth.f 
 This Statute helped to guide the judges. They resolved 
 that the custom was void, and that the inhabitants of 
 the Irish territories were to be governed thenceforward 
 by the rules of the Common law. 
 
 The Report of Sir John Davies leaves much in the 
 ancient tenure unexplained. The partition of land by 
 the chief among the sept, implies that the land was the 
 common property of the sept; while the three points 
 in which the Irish custom resembled Welsh gavelkind, 
 indicate that rights of succession existed, and that, to 
 some extent or over some land, tribal propert}^ had 
 given way to separate property in individuals or in 
 families. Davies does not explain this apparent con- 
 tradiction. The Judges when comparing Irish gavel- 
 
 * 12 Ed. I., Stat, milia). t 31 Hen. VIII., c. 2G, s. 91. 
 
kind with Welsli g-avelkind evidently derived tlieir 
 knovvledg-e of AVelsh tenure solely from the Statute of 
 Edward, for they refer to nothing- else. Following- out 
 the comparison beg-un by them, and consulting- for 
 ourselves the ancient Laws of Wales, we find a law 
 which may perhaps supply an explanation. There 
 was in Wales hereditary land, and land which was 
 not hereditary. The hereditary land went in the 
 family, but the land which was not hereditary was 
 divided by the King-'s officers among* all the inhabi- 
 tants of the townland. This division is so like the 
 partition made by the Irish chief, as to render it pro- 
 bable that the account g-iven by Davies is incomplete. 
 His further statement that the partition was at the 
 will of the Irish chief is too improbable to be accepted 
 without hesitation. We shall not, however, g-ain by 
 pursuing- the subject. Amidst its difficulties, one 
 thing* appears clear even from this Eeport, and the 
 additional knowledg-e acquired by modern investig-a- 
 tion places the point beyond a doubt, that the Judg-es 
 had not thoroug-hly mastered Irish g-avelkind.* 
 
 The Eesolution of the Judges was declared to be law, 
 but for the protection of the Irish a provision was 
 added confirming- in their possession all who had 
 enjoyed any portion of land by Irish g-avelkind be- 
 fore the beginning" of the king-'s reign. Thus Irish 
 customs were abolished, and the legislators of James 
 
 * Davies' Eeports, 78, 134, Eng. Translation. Hallam's Const. 
 Hist. III. 459. Ancient Laws and Institutes of AValcs, p. 82. 
 Ancient Laws of Ireland, II. Preface, p. xlvi. 
 
8 
 
 the First broke Avholly with the past. Within a year 
 or two of the date of this Resolution, the g-reatost 
 English lawyer of the age, Chief Justice Coke, de- 
 scribed Eng'hsh law as divided into Common law^ 
 Statute law, and Customs of Eng-land. Eng-lish law 
 was introduced into Ireland without the element of 
 custom. It could not carry thither the customs of 
 England. It rejected all the customs of Ireland. 
 At the very beginning-^ therefore, there was a difference 
 between English law as administered in England and 
 as administered in Ireland. 
 
 In England since that day the domain of Custom 
 has been progressively enlarged, and Custom itself has 
 undero'one a chano-e. The lano-uao-e of the old law 
 
 & O o o 
 
 is that Custom has the force of law. This was true of 
 manorial customs, for they were in fact local laws. 
 But the language does not accurately describe the 
 obligation of a modern *^custom of the countr3^'^ That 
 is a term expressed or implied in the agreement of 
 two parties contracting in that country or district with 
 reference to the subject-matter of the custom. As 
 tenure has passed from tenure by status, the tenure of 
 the old manors, to tenure by contract, so customs have 
 passed from being incidents of tenure by status to 
 being terms of a contract. This transition has been 
 accompanied by one remarkable difference. The an- 
 cient customs required for their establishment use con- 
 tinued time out of mind, while modern customs of the 
 country become established whenever they can be pre- 
 sumed to be generally admitted. Practically agricultu- 
 
ft 
 
 fists consider an usage to become generally known in a 
 district in about twenty years. Hence Custom has 
 acquired the flexibility of contract, and there is, 
 perhaps, no relation of life which it has done so much 
 to regulate as the relation of landlord and tenant. 
 ^^The common law," Lord Wensleydale said, in a 
 judgment delivered in 1836, of great weight among 
 lawyers, " does so little to prescribe the relative duties 
 of landlord and tenant, since it leaves the latter at 
 liberty to pursue any course of management he pleases, 
 provided he is not guilty of waste, that it is by no 
 means surprising that the court should have been 
 favourably inclined to the introduction of those regula- 
 tions in the mode of cultivation which custom and 
 usage have established in each district to be most 
 beneficial to the parties." * Custom has thus restrained 
 the tenant's liberty, and in turn it has given him pro- 
 tection. That protection has been at all times, and 
 especially in recent times, a marked effect of custom. 
 Thus in England, though permanent improvements are 
 seldom made by a tenant, yet in districts where a prac- 
 tice of husbandry has grown up requiring expenditure 
 for which he cannot reimburse himself during the ten- 
 ancy, side by side a right of remuneration, called 
 tenant-right, has also grown up, beneath the shelter of 
 the ^* custom of the country." 
 
 In 1847 a Committee of the House of Commons was 
 appointed to inquire into the agricultural customs of 
 England and Wales; and their Eeport contains so 
 * Hutton V. "Warren, 1 M. and W., 474. 
 
10 
 
 much that is closely connected with our subject as to 
 justify our dig-ressing- to study it. They reported that 
 in addition to usages of long* standing with the name 
 of tenant-right; under which an outgoing tenant was 
 allowed compensation for various ordinary operations 
 of husbandr}^, when precluded from receiving- a due 
 return by the termination of his tenancy^ a modern 
 usag-e had sprung* up, extending- the principle to im- 
 provements of the soil — such as draining, chalking*^ 
 and marling", — which required longer time to elapse 
 before the increased productiveness obtained by them 
 could reimburse the expenditure incurred. This mo- 
 dern usage^ they said, had gradually g-rown into 
 acceptance in many districts, till it had become recog*- 
 iiized there as the custom of the country, and was 
 finding- its way into new districts. The amount of the 
 compensation was settled by ascertaining- the cost of 
 the several improvements, and then spreading it over 
 the number of years within which each kind of im- 
 provement was supposed to repay itself, and deducting 
 from the number the time during which the tenant had 
 enjoyed the benefit of the improvements. The Com- 
 mittee traced this modern usage to the introduction of 
 spirited systems of farming-, and attributed its success- 
 ful growth to the co-operation of landlords and tenants, 
 who had entered into agreements by w hich the land- 
 lord promised to give compensation for the tenant's 
 outlay, and had enlarged their agreements with the 
 advance of agriculture. 
 
 One instance from the evidence will exhibit a custom 
 
11 
 
 in the process of growth^ and will serve later for the 
 purpose of comparison. A g-entleman of Lincolnshire, 
 who had inanag*ed his own property for upwards of 
 fifty years^ stated that it was now an established 
 custom in Lincolnshire for outofoing* tenants to receive 
 a proportion of their outlay upon artificial manures, 
 underdraining-, and some other operations, calculated 
 with a reference to the number of years they had 
 enjoyed the land. He remembered, he said, the orig-in 
 of the custom. In his young*er days farming* in Lin- 
 colnshire was very backward, and one-third of the 
 country was wretchedly cultivated. The introduction of 
 the four-course system, of the use of artificial manure, 
 and of underdraining", brought improvements; and 
 -with the improvements g-rew up this custom. After a 
 lapse of years, some valuers beg'an to make allow- 
 ances to tenants quitting- their farms, for their outlay 
 towards these improvements. But the arrangement was 
 very gradual in its prog'ress. At first it was stoutly 
 opposed by other valuers and by incoming* tenants, as 
 an innovation ; but by deg*rees it won its way "from 
 the wisdom," he said, " and justice of the measure, for 
 the more it was investig'ated, the more it was found to 
 be just.'* He was asked if the custom was the conse- 
 quence or the cause of the improved cultivation. It 
 was the consequence, he answered ; but as it insured 
 the tenant compensation on quitting*, it had, in turn, 
 stimulated improvement. 
 
 A case decided by the Court of Queen's Bench, in 
 
12 
 
 1851 shows us one of these customs in the Courts of 
 law. 
 
 A 3^early tenant of a farm in Derbyshire held his 
 farm upon the terms of his cultivating* the land accord- 
 ing to the rules of g-ood husbandry^ and the custom of 
 the country. The tenancy was determined by the 
 landlord, and upon its determination, he claimed from 
 the landlord^ under the custom of the country, a pro- 
 portional part of the cost of drainag'e done during- the 
 preceding" two years, but done without the knowledge 
 or assent of the landlord. There was no dispute as to 
 the propriety of the drain ag-e, but the existence of the 
 custom was disputed, and conflicting* evidence was 
 brought forward. The jury found tha^: the custom 
 existed as alleged by the tenant. It was then argued 
 that the custom was unreasonable ; and this point was 
 reserved for the judgment of the Court of Queen's 
 Bench. The Court held the custom to be reasonable. 
 One of the judges, Mr. Justice Erie, remarked that it 
 would not be an unreasonable contract between land- 
 lord and tenant that the tenant should be at liberty to 
 put in such drainage as was necessar}^, and that the 
 landlord should pay a portion of the expense ; and if 
 it was not unreasonable as a contract, it was not 
 unreasonable as a custom.* 
 
 In 1845, the late Lord Derby brought a Bill into 
 the House of Lords for giving compensation for im- 
 provements made by tenants in Ireland. In a speech 
 
 ♦ Mousley v. Ludlam, 21, L. J., N.S. G4.. 
 
13 
 
 of great eloquence, he said that the most important 
 because the most effectual means of improvement in 
 Ireland was by encourag-ing- the occupying" tenant to 
 invest his labour and his capital in the land : but it was 
 an object to which the Leg'islature had not hitherto 
 devoted its attention. He calculated the capital hoarded 
 b}^ the tenants. It could be called forth, he said, 
 only by g'iving* the tenant security that, if it were ex- 
 pended on the land, he should not be removed without 
 fair compensation for the improvements it had effected. 
 In England that security was g-iven by the custom of 
 the country, which had the force of law ; and compen- 
 sation was awarded for improvements made not with 
 the express consent of the landlord, but without leave 
 asked for a sing-le one of them. In Ireland, he said, 
 there was no such custom : and he urged the House to 
 apply the principle to Ireland by law, which was 
 recognized in England by custom.* 
 
 This absence of custom following and adapting itself 
 to the actual relations of landlord and tenant cannot 
 fail, I think, to be the first point which strikes an Eng- 
 lish lawyer in considering- Irish tenure. Knowing that 
 larg-e districts in Eno-land are held under a tenure from 
 year to year, and that where improvements of the 
 slightest durabilit}^ are made by tenants, their outlay 
 is reimbursed under some custom of the country, — 
 when he comes to Ireland and is told that nearty the 
 whole of the island is lield under the same tenure, and 
 that as a rule the permanent improvements are, or at 
 
 * Hansard's Pari. Debates, 1845, June 9. 
 
14 
 
 stny rate till recently were^ made almost wholly by ten- 
 ants, an Eng'lish lawyer looks at once for a custom of 
 the country to regulate the arrang-ement. But he finds 
 none. Even Ulster tenant-right^ which does provide 
 for the arrangement, is not a custom acknowledged in 
 law, but a course of dealing- resting upon opinion. As 
 it was in the da3^s of Sir John Davies, so has it been 
 all along, and so is it now. The relation of landlord 
 and tenant in Ireland has been governed by English 
 law, leaving out the element which in England forms 
 the chief protection of the tenant. 
 
 The question naturally arises, and has frequently 
 been asked of late years, as a question the answer to 
 which ought not to be overlooked in legislation — What 
 traces did Brehon law, though abolished by the Judges 
 and the Lord Deputy, Sir Arthur Chichester, leave 
 in the habits and sentiments of the people, and can 
 any of those traces be observed at the present day ? 
 Of the custom of Tanistry we hear no more; but 
 the custom of gavelkind long survived, reappearing, 
 under English law, in a form of tenancy common 
 down to the early part of this century 3 and it may still 
 be traced in the love of holding property in families, 
 in the tendency to subdivide the land, and in an unfa- 
 vourable shape, in Rundale, w'here the tenement is 
 made up of a number of scattered patches of each 
 particular quality of the land. Probably the subdivi- 
 sion of the land in the early part of this century would 
 have occurred under any tenure, for there was enough in 
 the circumstances of the time to explain it without 
 
IS 
 
 recurring" to traditional sentiment. Subdivision is the 
 inevitable policy of a society thrown back upon the 
 land as its sole resource. But the necessity for sub- 
 division received no cheeky and was, on the contrary, 
 fostered by Irish sentiment. 
 
 On the remains of Brehon g-avelkind, we have evi- 
 dence given before the Committee of the House of 
 Lords, in 1825, by Mr. Leslie Foster, the Member for 
 Louth, valuable as coming* from a man of observation, 
 and before the recent speculations on the political sig- 
 nificance of national traditions : — 
 
 '• The north of Ireland, that portion of the island which was 
 settled by James the First, and in which ho in fact destroyed 
 what may be called the original fabric of Irish society, is very 
 little open to the observations applicable to other parts of Ireland 
 which did not undergo that change. In these other parts, the 
 ancient habits of the Irish have to a great degree continued to 
 this day; and though the English lq.ws have been introduced 
 among them, yet many of their own ancient laws still continue to 
 exist in the shape of habits ; their dispositions and their practice 
 are in a state of complete contrast with the theory of the law aa 
 it regards the tenure of land." 
 
 Mr. Foster followed out the subject in his answer to 
 a question as to the efTects of an Act passed in 1816, 
 g-iving* the Civil Bill Court jurisdiction in ejectment in 
 the case of small tenements, and thus rendering* the 
 process more easy : — 
 
 " The act referred to by your Lordship was, I conceive, one of 
 the most important in its consequences to the lauded interest of 
 Ireland, which has ever been passed in that country. Its primary 
 object was to enable the landlord to have a remedy against his 
 tenant, by a cheap and expeditious process, and thereby to lead to 
 
16 
 
 the abolition of the tenancy in common, wliicli was one of the 
 greatest sources of the misery of the occupying tenantry of Ire' 
 land. Antecedently to the passing of that Act, there was a 
 bounty given by the law to the landlord, to unite his tenants into 
 clusters rather than to deal with them individually. The prac- 
 tice was to lease a certain tract of land to a company of persons, 
 who all held it in common, no individual having any separate 
 property in it whatever ; very often there was added to that, the 
 inconvenience of the tenancy being from year to year or at will. 
 In either state of things, but more particularly when those two 
 circumstances conspired, there was no incentive to industry. 
 This habit, I apprehend, originated in the Irish laws antecedent 
 to the English taking possession of the island. By the old 
 Brehon laws, it was the usage of the people to hold tracts of the 
 country by clans, and as tenants in common, and at the will of 
 their immediate chief; and in those times succession was by the 
 law of gavelkind. These habits I conceive to have continued 
 to subsist in Ireland more or less perfectly in^ those parts which 
 were not the subject of the plantation of James the First, or 
 other English sovereigns, until the present day. I conceive 
 that the state of the law antecedent to the statute to which 
 your lordship has referred operated as a bounty upon the land* 
 lord to acquiesce in that state of things. He found it more 
 convenient to allow those companies to continue to possess 
 the land in that manner, because he could then, through the pro- 
 cess of an ejectment, deal with any number that might be united 
 in one company; whereas, if he leased to each person to hold in 
 severalty, he would be obliged to bring as many ejectments as he 
 had tenants. The first object, then, of the statute referred to 
 was to enable the landlord, at the expense of a few pounds, and 
 in the course of a few weeks, to get possession of his land from 
 the occupying tenants in case of their withholding rents, provided 
 the farm did not exceed a certain magnitude — fifty pounds a year. 
 I conceive it has been the first and most important consequence 
 of that statute to break up the tenancies in common very much. 
 I know that the landlords in the south have already gone a great 
 
17 
 
 way towards putting an end to that species of tenure, whicli liaa 
 in my view, been one of the greatest sources of the misery of the 
 tenantry." 
 
 There is an account of this form of holding* in a 
 Report written by Sir Henry Piers in 1682 on the 
 county of Westmeath, a county, probably from its 
 adjoinmg- the Pale, always noted for adherence to Irish 
 usao'es.* 
 
 o 
 
 Speaking" of the husbandmen, he sa3"s : — 
 
 " I will crave the reader's patience to suffer me a while to give 
 an instance of the dealing of this sort of men, and their customs 
 in the manage of their husbandry one with another. Every town- 
 land held by them is grazed in common ; that is, every man's 
 stock goes indifferently over all the pastures of the town. The 
 difference lies here: he who holds the greatest number of acres in 
 the arable is supposed the more able farmer, and consequently 
 is allowed to have more cattle in the pastures of the town than he 
 who holds fewer acres, or a lesser holding, aa they call it. The 
 great evil hereof generally is overstocking their ground, b}'^ means 
 whereof it is too often seen, once in three or four years, that they 
 hazard the loss of their stock. As they graze in common, so one 
 who is not acquainted with them would think that they plough in 
 common too. For it is usual with them to have ten or twelve 
 ploughs at once going in one small field; nevertheless everyone here 
 hath tillage distinct, though all appear fenced up in one mear or 
 ditch. They divide usually one field into acres, half-acres, stangs 
 — that is, roods ; and of these they make so many lots or equal 
 shares, as there are ploughs in the town, so as a man whose share 
 may amount to three acres shall not have, perhaps, half an acre 
 together, but scattered up and down in all quarters of the field.'* 
 
 Sir Henry Piers is not a friendly witness, and he 
 narrates with some humour the care each man toot 
 
 ♦ Hallam's Const. History, iii. 485. 
 
 C 
 
18 
 
 lest he should be overreached by his neighbour ; the 
 casting" of lots for the shares^ the discontent, the 
 wrangling-^ a new division, and the restoration of 
 peace by the interference of the landlords. Their 
 customs, he tells us^ obliged them to aid one another 
 in ploughing. If they disagreed, the husbandman 
 seeking aid appealed to the landlord, who w^as con- 
 sidered bound to provide a helper, and if this helper 
 made default, himself to help. The husbandman then 
 brought his own cart and tackle day by day into the 
 field, and offered them with his own labour and a 
 proportion of seed to the defaulting helper, and at the 
 harvest became entitled to a share of his crop. The 
 custom, he adds, was called the law of Owen with the 
 Beard, an ancient Brehon. 
 
 The landlords, in the picture drawn by Piers, 
 retain many of the characteristics of chiefs. They 
 protected their tenants against the oppression of 
 others, in many cases from the payment of their 
 just debts, and in turn, many still were, as had 
 been the landlords of old, oppressors of their fol- 
 lowers and tenants, and much given to cosher, that 
 is, to come and live on them. They were appealed to 
 in every dispute ; and so necessary were they that there 
 was a saying that a town without a landlord and a 
 bull, was a town turned topsy-turv3^ 
 
 The following passage describes the tenure : — 
 
 *' They hold but from year to year, nor do they desire longer 
 term. They have a custom on a stated day every year to come 
 and give warning to their landlord to provide other tenants for 
 their holdings and houses, and this they will do as formally as if 
 
19 
 
 tKey were in earnest, and yet after all they intend nothing less* 
 for they will not leave the place witli their good will, where they 
 and their ancestors have sat. In this case you shall have some of 
 them tell their landlord, that they and their forefathers have been 
 there as long, and perhaps longer, than he, and they will not out 
 for him; whither shaU they go? and the like stuff; and this 
 their shyness of leaving their ancient habitation, is not without 
 some cause. For if one of them remove but to dwell in the next 
 county, nay, the next parish, provided it be under another land- 
 lord, he is on every little picque with his neighbour, reproached 
 with terms importing vagabond, or a forsaken outcast, etc., and 
 80 keen is his anima redeundi, that he is not at ease within himself, 
 till he make way for his return again, to the place, as he phrases 
 it, where he ought to be — 
 
 Nescio qu^ natale solum dulcedine cunctos 
 Tangit, et immemores non sinit esse sui."* 
 
 In the next century Arthur Young* found agricul- 
 tural partnerships resemblingf this holding of West- 
 meath, in Kilkenny, on the mountain sides of Wicklow^ 
 as well as in other places. Of Kilkenny he says : — 
 
 *' They have a practice here which much deserves attention • 
 three, four, five, seven, &c., little farmers will take a large farm 
 in partnership. They must be equal in horses, cows, and sheep, 
 and tolerably so in other circumstances ; they divide every field 
 among themselves equally, and do all the labour of it upon their 
 separate account, assisting each other mutually : they never throw 
 the whole into one stock and divide the profit, from suspicions, I 
 suppose, they have of one another."t 
 
 In 1811, Mr. Edward Wakefield, saw large tracts 
 in Slig'O and Tyrone, held undivided in partnership ; 
 and as late as 1844, one of the witnesses before the 
 Devon Commission, the Eev. Father Lyon, described 
 
 * Vallancoy Collectanea de Eebus Hibernicis, I. 115. 120, 
 t A. Young's Tour. Vol. i. 99 ; 8vo. 1780. 
 
 V <v 
 
20 
 
 this form of holdrng* as still existing* on his own pro- 
 perty in the remote district of Erris in Mayo^ in words 
 almost identical with the words of Sir Henry Piers. 
 Four men of the village; he says, called Heads of Quar- 
 terS; obtained the lease of a farm consisting" of arable 
 and g-razing* land, and then took in a number of others 
 as co-partners. The farm was valued according* to the 
 number of cows for which there was grazing g'round, 
 the grazing* of a cow being- called a collop. Each 
 partner paid rent in proportion to the number of collops 
 he held; but their cattle fed in common. The arable 
 land was divided into as many portions as there w^ere 
 collopS; and each had as many portions as he held col- 
 lops. The land was redivided every two years^ and in 
 such a manner that if it consisted of various qualities, 
 good; middling; and bad; each copartner had a ridg-e 
 of g-ood, of middling*; and of bad; in different parts of 
 the field. The Four adjusted the collopS; and the 
 shares of arable land among* the other partners ; they 
 collected the rentS; and paid the landlord. 
 
 Such is the evidence as to the influence of Brehon 
 Gavelkind upon later Irish life and character. I have 
 set out the evidence at some leng*th; and at the risk of 
 repetition, because the only mode of estimating* the 
 influence of an early custom upon subsequent genera- 
 tions; is to trace the custom by historical evidence from 
 generation to generation; to observe how far it becomes 
 disintegrated by the action of new forceS; and to note 
 the time when the fragments can be traced only in 
 popular sentiments. Two questions of statesmanship 
 may then arise — How far these fragments will resist 
 
21 
 
 further disintegration, and How far do they offer 
 elements fitted for new combinations? To readers 
 who care to answer these questions for themselves^ the 
 testimony of the witnesses, and not the g-eneralizations 
 of the writer, are of value. 
 
 The two other events of the period are the comple- 
 tion of the settlement of the forfeited lands of the Earl 
 of Desmond in Munster, and the settlement of Ulster. 
 These events have been so often narrated that we may 
 confine ourselves to the observations they suf^gest. A 
 few years before, in 1596, Edmund Spenser, in his 
 View of the State of Ireland, wrote this remarkable 
 passag-e : — 
 
 "There is one general inconvenience wbicli reigneth almost 
 throughout Ireland, that is, the lords of land and freeholders do 
 not there use to set out the land in farm or for term of years to 
 their tenants, but only from year to yean and some during 
 pleasure : neither indeed will the Irish tenant or husbandman 
 otherwise take his land than so long as he list himself." 
 
 Sir John Davies also says that the uncertainty of 
 estates was the true cause of that desolation and barba- 
 rism in Ireland, to which the like had never been seen 
 in any Christian country. These passages leave no 
 doubt that the statesmen of that day considered this 
 uncertainty of tenure, tenure at will, or tenure in 
 villenage, for by all these names, borrowed from their 
 own vocabulary, they described it, as the great evil of 
 the Irish system of septs ; and to its cure their legis- 
 lation was directed. 
 
 In the settlement of Munstcr tlie Undertakers were 
 required to plant a specified number of English free- 
 
23 
 
 holders and leaseholders on their g-rants ; and in the 
 settlement of Ulster the Undertakers^ whether British, 
 who were allowed to take none but British tenants ; 
 or servitors^ that is^ persons who had served in civil 
 and military offices in Ireland^ and who w^ere allowed 
 to take Irish as well as British tenants ; or Irish free- 
 holders^ were all required to g-rant estates of certain 
 tenure^ and not to take Irish exactions. Both in 
 Munster and in Ulster the British grantees were 
 allowed to create manors and to hold Courts Baron, — 
 another method of bring-ing about certainty of tenure 
 and of introducing customs. At a muster in 1G22 
 of the tenantry on the estate of the first Earl of Cork 
 hi Waterford, there were present freeholder, lease- 
 holders; and thirty copyholders.* But this estate ap- 
 pears to have been an exception. Few manors were 
 created, and very few, if any, survived the rebellion of 
 1641. This method totally failed. The settlement 
 of Munster did not produce certainty of tenure, for a 
 considerable portion of the forfeited lands was restored 
 to the old proprietors, and most of the new grantees 
 neglected to bring over English tenants in accordance 
 with the terms of their grants, and became landlords 
 of native tenants ; and thus things went on in the old 
 groove. The settlement of Ulster was more success- 
 ful, and was dotted in centres through the counties of 
 Armagh, Cavan, Fermanagh, Londonderry, Donegal, 
 and Tyrone. About nineteen hundred English and 
 Scotch freeholders and leaseholders were reported in 
 the survey made in 1618, as planted in these counties. 
 * Smith's History of Watcrford, 1774, pp. 33, 56. 
 
23 
 
 James broke up the old fabric ; but we must not, I think, 
 attribute too much to this particular scheme in the re- 
 construction of society in Ulster. The scheme atfected 
 at the highest estimate only five hundred thousand out 
 of the two million eight hundred thousand acres confis- 
 cated, and was in some respects imperfectly carried out. 
 Irish tenants were retained contrary to the terms of 
 grant 5 the English tenants w^ere disinclined to culti- 
 vate from the unsettled state of the country, and lived 
 upon the rents paid them by the Irish ; and the 
 Scotch alone were diligent. Nor did the scheme affect 
 Antrim and Down, the latter the most Scotch of Irish 
 counties. Hence the construction of society in Ulster 
 must be considered due in a more general way^ to 
 the immiofration of Scotch settlers.* 
 
 It is startling to find the uncertainty of tenure 
 which the statesmen of that day endeavoured to 
 remedy, confronting us under different personal cir- 
 cumstances, as the complaint of the present time. 
 Their difficulty is our difficulty — how to adapt the law 
 which has grown up with English society to Irish 
 society. The solution they proposed, \\hich took no 
 heed of the conditions of the native society, has not 
 survived. And the solution — for it may be called 
 a solution— arrived at in Ulster, has been developed 
 from that element of custom, for which they would 
 not or could not find a place in the law. 
 
 One word as to the relation of the chief to the sept.. 
 
 ♦ Harris' Hibcruica, 127, 128^ 235- 
 
24 
 
 There hang-s over it g-reat obscurit\\ Neither Davies 
 nor Spenser exhaust the subject. They have told us 
 the right of the chief over the sept ; among which 
 " coshery" — the right to free quarters on a progress^ 
 — and the usageof fostering*, — the nurture of the chil- 
 dren of the chief by members of the sept, — stand pro- 
 minent : but they have not told us with equal explicit- 
 ness the limitations of the rights, or the corresponding- 
 obligations of the chief. Nor is this surprising*. When 
 English rule broke up the system, the obligations lost 
 their customary sanctions, and the rights became Irish 
 exactions. These exactions were more apparent and 
 more long lived than the obligations, and we read 
 without astonishment in the recital of the Statute of 
 Charles the First against coshering, that many young 
 gentlemen, having little of their own, walked idly up 
 and down, coshering upon the country and ^^sessing'' 
 themselves and their gre3'hounds upon the tenants of 
 others.* Hence, while the obligations could not come 
 within the range of law, the exactions could come, and 
 it was a natural and just exercise of English rule on 
 behalf of the Irish to put them down. But the strength 
 of the tie between the chief and the members of the 
 sept is shown by the continuance of fostering and the 
 dependence of the tenants upon the native landlords 
 down to the time of the Commonwealth, after the chiefs 
 had passed into mere landlords.^ The account also of 
 
 * 10 and 11 Car. I. c. 10. Irish St. 
 
 t The Interest of England in the Irish Transplantation. By 
 B. Lawrence, Esq. IC'55. 
 
25 
 
 Sir Henry Piers relates some of the oblig-atioiis of tlie 
 chief or landlord under the national customs ; and 
 recent researches appear to prove that the chief was 
 Expected to supply stock and seed, and that thus among* 
 the ancient Irish existed the rudiments of a Metayer 
 tenancy. But the evidence does not warrant us in 
 g'oing" further, and in asserting- in the time of James 
 the First a community of property between the chief 
 and the sept. Before that time, as we have seen, and 
 as is shown also in the rule of succession to land by 
 the Tanist, common ownership had been modified by 
 the idea of separate property. Still less are we war- 
 ranted in bringing- down to our days a notion founded 
 on this alleged community of property. The Irish 
 gavelkind we have been examining is remarkable as 
 the Brehon custom which has come down to us in a 
 developed form, and nothing- in it is more remarkable 
 than the way in which it has been adapted, under the 
 hands of the tenants, to succeeding phases of society. 
 Between 1700 and 1845, though there is some commu- 
 nity of property among the tenants, less complete 
 apparently than in earlier times, there is no trace of 
 common ownership between the tenants and the land- 
 lord. Towards him the tenants are simply lessees. 
 
 II. During the reigns of James and of Charles the 
 First the land had rest for nearly forty 3^ears, and the 
 rest, like every time of rest in Ireland however pro- 
 cured, brought material wealth and prosperity. But 
 it was a rest galling* to the Irish, who l^ad suffered 
 
26 
 
 from confiscations in the fortunes of war^ and it was 
 rudely broken in upon by the rebellion of 1641. Then 
 came twelve years of war, when the island was more 
 thoroughly subjug'ated than it ever had been before, 
 and that war was followed in 1653 by the Cromwellian 
 settlement. 
 
 This settlement provided for the Adventurers, who had 
 advanced money for the suppression of the rebellion, and 
 for the OflScers and Soldiers who had served in the army 
 in Ireland. At the accession of Charles the Second it 
 underwent some changes in favour of dispossessed 
 Royalists, but its chief provisions were ratified by the 
 Act of settlement of 1662. For our purpose the results 
 may be shortly told. It affected ten counties, Limerick, 
 Tipperary, and Waterford in Munster ; King's County, 
 Queen's County, Meath, and Westmeath in Leinster ; 
 Down, Antrim, and Armagh, in Ulster. It differed 
 from the preceding settlements and the subsequent 
 settlement of William the Third, in planting in the 
 country a body of small proprietors ; but they were 
 proprietors unfitted by their habits and training for an 
 agricultural life. Like the preceding settlements, it 
 was not fully carried out. One important part of the ' 
 scheme was the transplantation of those Irish, who were 
 entitled to favour under qualifications specified in the 
 provisions of the settlement, into the province of Con- 
 naught, there to have lands set forth to them answer- 
 ing in value to the estates allowed to them under the 
 qualifications. But when the time for transplantation 
 arrived, difficulties of many kinds arose, and one from 
 
27 
 
 an unexpected quarter. During* their sta}^ in Ireland 
 many of the officers and soldiers had married Irish 
 wives, and were unwilling* to have their relations sepa- 
 rated from them. Many were unused to tilling^ the soil, 
 and wished to retain the Irish on their lots as servants. 
 Two results followed, different from the results intended. 
 Connau^ht remained unpeopled. And though the set- 
 tlement did much towards destroying* the old form of 
 Irish society, it did not introduce an element of Eng- 
 lish civilization. The new settlers did not produce a 
 change among the old inhabitants, but learned their 
 ways. As early as 1682 Sir Henry Piers said that 
 many sons of Englishmen in his neighbourhood had 
 already become Irish in interest, education, and reli- 
 ligion : and Primate Boulter, in the middle of the next 
 century, made a similar complaint. 
 
 The war following the Revolution of 1688 brought 
 the next and last great confiscation. We know its 
 results with accuracy. The lands forfeited at the 
 close of the war were situated in many counties, and 
 amounted, according to the reckoning of the Commis- 
 sioners appointed to inquire into Irish Forfeitures, to 
 nearly one million eight hundred thousand English 
 acres. The largest forfeitures were in Cork, Meath, 
 Kerry, and Galway. Three hundred and seventy 
 thousand acres were restored under the Articles of 
 Limerick and of Galway. One hundred and eighteen 
 thousand more were restored by His Majesty's favour. 
 Above a quarter, therefore, of the forfeited property 
 was restored, and so far no change was made in the 
 manner of holding. Of the rest, nearly seven hundred 
 
28 
 
 thousand acres were granted to eleven officers and 
 other persons who had claims from losses or had dis- 
 tinguished themselves in the war, in lots ranging from 
 two thousand to two hundred thousand acres ', and the 
 remaining six hundred thousand acres were sold in 
 1703 among five hundred purchasers. The effect of 
 the settlement therefore was to introduce large and in 
 many instances absentee proprietors.* 
 
 Towards the end of this period, a system was 
 broug'ht in, which exercised a powerful and in the end 
 a harmful influence upon the tenure of Ireland, until 
 it w^as put an end to in 1849. Some of the grantees 
 of the confiscated lands, who did not wish to reside in 
 Ireland, finding rents low and being desirous to at- 
 tract tenants, let their lands on leases for lives renew- 
 able for ever. The Commissioners of Forfeitures, in 
 1700, recommended that this system should be tried 
 in Connaught, on account of its desolate condition. 
 The S3'stem found favour at first, for it appeared to 
 convey a valuable holding-, while the landlord retained 
 legal facilities for recovering the rent. It stood pro- 
 minent among the projects of the next century, and it 
 was not till the latter part of that century that the 
 evils of the system fully showed themselves. By that 
 time difficulties and constant litigation had arisen, 
 chiefly from a neglect on the part of the lessee to 
 renew on the dropping of the lives. Then new com- 
 plications arose. The lessee himself leased for lives 
 renewable for ever, with a covenant to renew to the 
 tenant on renewing himself, and the sublessee did the 
 ♦ See " The Book of Postings and Sales " 1703. 
 
29 
 
 same, till a chain of three or four tenancies was 
 created. The tenants in the descending* series ran the 
 risk of losing" their interests if the first tenant com- 
 mitted a forfeiture, and in the ascending* series each 
 ran the risk of losing* his rent if the last failed to pa}'. 
 We cannot wonder that a Judge, who had studied the 
 tenure thoroughly, said that every abstract of title 
 recorded a suit in equity, and that the experience of 
 every day showed how uncertain was the duration of 
 an interest under such a tenure. Mr. Lynch, writing* 
 in 1839, said that one-seventh, at least, of Ireland, 
 was subject to this tenure ; and he adds a remark well 
 worthy the attention of those who propose measures 
 of leofislation tendino;- to diminish the interest taken 
 by landlords in their estates : — 
 
 " There is another party that suffers by this tenure, and that is 
 the public; for instead of landlords occupying and improving 
 their owti estates, in immediate connection with their tenants, 
 and encouraging and assisting them in improvements, and instead 
 of tenants having a certain fixed term in the property by which 
 they could safely measure their expenditure in the way of im- 
 provement, the landlord neither has, nor can have, an interest in 
 improving the property, and the sub-tenants will not improve 
 them when they have no certainty that the property will descend 
 to their posterity. This tenure being founded on absenteeism, also 
 takes away all inducement from landlords to reside in Ireland, 
 and there is no reason why they should, for they have no land to 
 manage or improve.'* * 
 
 III. We now close the Roll of confiscations, and have 
 
 * Measures for the Employment of the Labouring Classes in 
 Ireland. By H. II. Lynch, Esq , M.P., 1839. 
 
30 
 
 to watch the forces we have seen introduced^ at work in 
 moulding" Irish societ3\ The period from the acces- 
 sion of Queen Anne to 1782, is the period of the 
 Penal Laws affecting* tenure ; the period during- which 
 the continued repression of Irish manufactures, begun 
 in the time of Charles the Second, threw the people 
 back upon the land ', and the period in which middle- 
 men grew up. 
 
 In 1701 and 1703 were passed the two penal laws 
 restricting the holding of land by Eoman Catholics. 
 By the first, an Act of the Imperial Parliament, every 
 Papist was made incapable of purchasing any interest 
 in the forfeited lands. By the second and more im- 
 portant law, passed by the Irish Parliament, every 
 Papist was made incapable of holding land except for 
 a term of less than thirty-one years, and at a rent of 
 not less than two-thirds of its value. These laws 
 continued in force till they were abrogated by the Act 
 of 1777, which enabled Eoman Catholics to take 
 leases for any term not exceeding 999 years, and by 
 the Act of 1781, which enabled them to purchase 
 freehold estates.* 
 
 The mass of the population being Eoman Catholics, 
 the legislation of 1703 limited the term which could 
 be granted to most of those who offered themselves as 
 tenants, and brought into juxtaposition tenants' im- 
 provements and short tenures without compensation. 
 To this characteristic of the period, which will soon 
 
 * 1 Anne, c. 32. 2 Anne, c. 6. Irish Sfc. 17 & 18 Geo. III., 
 c. 49. Irish St. 21 & 22 Geo, III., c. 24. Irish St. 
 
31 
 
 become one of the main branches of our inquiry, we 
 will confine our evidence. 
 
 Thirty years of renewed rest from war, and of atten- 
 tion to the pursuits of peace, sufficed to bring- out the 
 peculiar evils of Irish tenure. The following- passage 
 from the essay of Arthur Dobbs, on the " Trade and 
 Improvement of Ireland/' describing- these faults, 
 was written in 1729. For their cure the writer 
 ardently desired to create a body of independent 
 holders — in his own words — ^^ a yeomanr}^" I have 
 quoted from him at some leng-th, because his evidence 
 and his opinions are so intermingled that it is impos- 
 sible to separate them. On reading- him we must 
 remember that he had not seen the results of the lease- 
 holds renewable for ever : — 
 
 ** Could I ever hope to see all our nobilitj and gentry so gene- 
 rous to their country, to their posterity, and I may say to them- 
 selves, as to fix the tenures and possessions of their tenants upon 
 a lasting and certain foundation by leases of lives renewable, or 
 fee farms, I would not doubt to find our people soon become 
 industrious and frugal to the utmost. * * * 
 
 " The discouragements to improvements arising from our present 
 method of letting our lands by short leases of twenty-one years 
 is obvious to all. Places where the number of Papists is great, it 
 is plain, will never be improved ; on the contrary, they will rather 
 endeavour to impoverish the land, though bound by the strictest 
 ties. This is occasioned by the shortness of their leases. We 
 find very little improvement made in leases of thirty-one or forty- 
 one years." 
 
 He points out that few improvements were made on 
 the estates of Bishops, and continues: — 
 
 " How can lay landlords, whose estates descend to their chil- 
 
32 
 
 di*en, expect tlieir tenants should improve upon leases deter" 
 ttiinable upon thirty-one or forty-one years, or even three lives ? 
 Have not tenants daily instances before them of landlords squan- 
 dering away their time and money, and living upon their fortunes, 
 upon the prospect they have of retrieving their affairs at the 
 expiration of such leases, by raising extraordinary fines and selling 
 their lands to those who offer most for them ? Upon renewal the 
 improving tenant must pay for the landlord's extravagance a sum 
 equivalent to the improvement he has made, and the utmost value 
 of the land, in case he has been so provident as to have acquired 
 any money, which seldom happens upon such tenures ; or he 
 must give a nominal rent for the future if he renews his lease, 
 otherwise the next person who offers a trifle more gets his land, 
 and he is turned adrift, to serve in like manner the next whose 
 lease is expired. Thus, where the landlord proves extravagant, 
 he scarcely ever distinguishes between an improving and a non- 
 improving tenant." 
 
 He describes it as a common practice for ag^ents to 
 put up leases to auction^ eng-ag-ing^ to accept the hig-hest 
 proposal. If a tenant therefore had improved more 
 than his neighbour^ or kept his house and lands in 
 better order^ he suffered because his improvements 
 raised the value of the farm against himself when he 
 came to bid for a renewal. This is the meaning of the 
 word " overrated^' in the following passage : — 
 
 " How, then, can a tenant improve his land, when he is con- 
 vinced that after all his care and toil his improvement will be 
 overrated and he be obliged to shift for himself? Let us place 
 ourselves in his situation, and see if we should think it reason- 
 able to improve for another, when that improvement would be 
 the very cause of our being removed from the enjoyment of 
 them. I believe we should not ; industry and improvement go 
 very heavily together, when we think we are not to have the 
 property in cither. 'What can be expected from covenants to 
 
33 
 
 improve and plant, when the person to do it knows lie is to have 
 no property in them ? There will be no concern or care taken 
 to preserve them, and they will run to ruin as fast as made or 
 planted. * * * 
 
 "Thus we see that this country at present suffers from the 
 commonalty'g having no fixed property in their hands, the want 
 of which deprives them of a sufficient encouragement for im- 
 provement and industry. The present short tenures serve only 
 as a snare to induce the nobility and gentry to be extravagant, 
 arbitrary, and sometimes tyrannical, and the commonalty to be 
 dejected, dispirited, and, in a manner, slaves in some places. 
 
 " Nor do I think it would be prejudicial to the public if such 
 a method as this were introduced, viz., to give leases of lives re- 
 newable, or fee-farms, at a reasonable price, as lands are generally 
 let in the country, and the landlord afterwards always, from 
 seven to seven years, or from ten to ten years, to have it in his 
 choice to take the first rent it was fixed at in money, or the third 
 part of the produce of the farm annually in kind after the latter 
 is deducted ; so that he might have it in his power to agree with 
 his tenant, for seven or ten years certain, for a sum of money to 
 be paid annually for such third, or otherwise to take it in kind. 
 
 " By this means the landlord would have a certainty for the 
 rent the lands were first set at, and also the proportional part of 
 the increase made by the tenant upon the improvement of his 
 farm, either in gardening, orcharding, tillage, or pasture, accord- 
 ing to agreement. 
 
 "Such a tenure, I am convinced, would answer all the ends 
 desired by the public as well as by the landlord and tenant. The 
 public would reap all the benefits of the improvement made in the 
 value of lands through the kingdom. The landlord would have 
 a reasonable share of the improvement of his land and gradual 
 rise of markets, and the tenant would have a permanent property 
 in his farm, and a comfortable additional subsistence to his family 
 by his improvements, care, and frugality."* 
 
 * Tracts and Treatises on Ireland. 1861. 
 
 D 
 
34 
 
 In 1738 a remarkable tract was anonymously pub- 
 lished, called ^^ Eeflections and Resolutions proper for 
 the Gentlemen of Ireland.'' The author was Dr. 
 Madden, a clerg-yman greatly respected in his day, 
 and disting-uished for his efforts to promote the in- 
 dustry of Ireland. 
 
 One of the resolutions which he proposes to land- 
 lords to make is to build and to encourag-e their 
 tenants to build. The houses, he says, both of tenants 
 and cottiers, are in a wretched state, but their refor- 
 mation would not prove difficult, especially in the case 
 of families not of the poorer sort, if the landlords 
 would g-ive them little helps or lime, or allow them 
 leases of thirty years at least, and the first year or 
 half year's rent towards the buildings. 
 
 As Arthur Dobbs had mourned, so he mourns over the 
 emigration which had recentl}^ taken place from the 
 North of Ireland, and attributes it to want of care 
 on the part of landlords. The emigrants, he says, 
 would never have run the hazard had they received 
 proper encouragement, good usage, and bargains here. 
 
 Then follows this passage : — 
 
 "But to return to our tenants. As for the better sort of 
 them, who are a little able to bear the expense of building, 
 they should have contracts in their leases, that they should 
 be allowed such a sum for their houses when they expire, for 
 otherwise it is expecting, as the Egyptians dealt with the Jews, 
 that they should make bricks without straw. Such an allowance 
 was ever appointed by the civil law to be made by the lord of the 
 soil to the vassal, or else he was at liberty to remove or demolish 
 them. This is now the custom in Saxony and Flanders, and it is 
 
35 
 
 certainly but reasonable and equitable, and less chargeable than 
 paying for repairs as they do in great part of England. Some of 
 our laws as they now stand are great obstacles to building, parti- 
 cularly those which allow no tenures to Papists above thirty-one 
 years, nor to Protestants, if on Church lands, above twenty-one, 
 both of which might be removed by clauses from landlords of 
 allowances for their dwelling-houses, at least when their leases 
 expire. Our marriage settlements also are as great incumbrances 
 in the point, which, together with the narrow way of thinking in 
 most landlords generally averse to long leases, will be hard to be 
 removed. I am persuaded, however, if we had an act to empower 
 us, notwithstanding settlements or the Popery Acts, to set a lease 
 W ever of only ten or twenty acres at most, even to Papist trades- 
 men, who would covenant to build good houses of lime and stone, 
 and enclose, ditch, and plant the ground with a little orchard and 
 garden, and three or four small parks, we should soon see many 
 thousands of such improvements rising in our country, to our 
 great profit and ornament, and the benefit of our manufactures. 
 It is this has made the isle of Jersey all one garden, by its being 
 broken thus into a large parcel of perpetual small freeeolds ; and 
 we should feel the same advantage from it, and yet our rent rolls 
 would rather rise than sink hereby, as the bulk of our lands 
 would continue to be let on short leases."* 
 
 This period was closed by two g'reat authorities — 
 Edmund Burke and Arthur Young*. In his Tracts 
 on the Popery Laws, Burke thus wrote : — 
 
 " A tenure of thirty years is evidently no tenure upon which to 
 build, to plant, to raise enclosures, to change the nature of the 
 ground ; to make any new experiment which might improve agri- 
 culture ; or to do anything more than what may answer the imme- 
 diate and momentary calls of rent to his landlord, and leave 
 subsistence to the tenant and his family. # # # 
 
 * Reflections and Eesolutions proper for the Gentlemen of 
 Ireland. Dublin, 1738. 
 
 D 2 
 
30 
 
 " But it is not enough that industry is checked by the confine- 
 ment of its views ; it is further discouraged by the limitation of 
 its own direct object, profit. This is a regulation worthy of our 
 attention, as it is not a consequential, but a direct discouragement 
 to melioration ; as directly as if the law had said in express terms, 
 * Thou shalt not improve/ 
 
 *' But we have an additional argument to demonstrate that the 
 policy of denying the occupiers of land any solid property in it. 
 Ireland is a country wholly unplanted. The farms have neither 
 dwelling-houses nor good oflSces ; nor are the lands almost any- 
 where provided with fences and communications ; in a word, in a 
 very unimproved state. The landowner there never takes upon 
 him, as is usual in this kingdom, to supply all these conveniences, 
 and to set down his tenant in what may be called a completely 
 furnished farm. If the tenant will not do it, it is never done. 
 This circumstance shews how miserably and peculiarly impolitic 
 it has been in Ireland to tie down the body of the tenantry to 
 short and unprofitable tenures. A finished and furnished house 
 will be taken for any term, however short ; if the repair lies on 
 the owner, the shorter the better. But no one will take one not 
 only unfurnished, but half built, but upon a term which, on calcu- 
 lation, will answer with profit all his charges.'* 
 Arthur Young- visited Ireland bet ween 1776 and 1770. 
 Every pag*e of his Tour is interesting*. But we natur- 
 ally turn to the chapter on the Tenantry, from which 
 are taken the following- sentences which contain the sum- 
 mary of his conclusions, and are all our space admits 
 of. He saw Ireland in the hands of middlemen and 
 "jobbers/' and says : — 
 
 " In a word, the case is reducible to a short compass ; interme- 
 mediate tenants work no improvements ; if non-resident they 
 cannot, and if resident they do not ; but they oppress the occupiers, 
 and render them as incapable as they are themselves unwilling. 
 
 * Burke, Tracts on the Popery Laws. 
 
37 
 
 The kingdom is an aggregate proof of these facts ; for if long 
 leases, at low rents and profit incomes given, would have improved 
 it, Ireland had long ago been a garden." 
 
 " The first object for a landlord is a settled determination never 
 to be departed from, to let his farms only to the immediate occu- 
 pier of the land. By no means to reject the little occupier of a 
 few acres from being a tenant to himself, rather than annex hia 
 land to a larger spot. Having by this previous step, eased these 
 inferior tenantry of the burden of the intermediate men, let him 
 give out and steadily adhere to it, that he shall insist on the 
 regular and punctual payment of his rent. The meanest occupier 
 to have a lease, and noue shorter than twenty-one years, which I 
 am iuclined to think is long enough also for his advantage." 
 
 lY. The period from 1782 to the great famine of 1846, 
 may be described as the period in which the present 
 state of Irish society was formed. In those sixty-four 
 years^ the Irish people went throug-h social experiences 
 rarely crowded into two generations of a nation's life^ 
 In 1779, just before the commencement of this period, 
 the population of Ireland was estimated at three mil- 
 lions. By 1821, it had reached six millions eight 
 hundred thousand, and in 1841, it exceeded eight 
 millions. In 1782, a great part of Ireland was 
 under lease to middlemen, though even then the 
 immediate occupier of the land often, if not generalh', 
 held without lease. By 1846, middlemen had nearly 
 disappeared, and the landlord dealt directly with his 
 tenants; and between 1782 and 1846, the country had 
 passed through a time when leases were very com- 
 mon to a state of tenure from 3ear to 3'ear. By the 
 close of the period, the relations of landlords and ten- 
 
38 
 
 ants had assumed the shape in which we now find them. 
 Since then^ some of the relations have indeed under- 
 g-one a change in their respective proportions ; but 
 in substance, the questions now before us were put 
 before the country by the Devon Commission, which 
 in 1845 reported on the Occupation of land in Ireland. 
 The Acts of 1777 and 1782 enabling- Roman Catho- 
 lics to hold leases of more than thirty-one years and 
 freehold estates produced immediate and marked 
 effects. They g-ave an impulse to tillag*e, and led to a 
 great increase in the number of the holders of land. 
 In 1793, when a Bill was brought into the Irish Par- 
 liament for giving the franchise to Roman Catholics, it 
 w^as opposed on this very ground as injuring the Pro- 
 testant interest, because, it was said, the large farms 
 w hich a few 3^ears before had been all in pasture ground, 
 and occupied by a single Protestant farmer, were now 
 tenanted by Catholic landowners, so that seven or eio:ht 
 Catholics held the land formerly held by one Protestant.* 
 The Bill became law ; and nothing will meet us more 
 strange than the incidental and unexpected effects 
 w^hich some years later ensued. Irish tenants at that 
 time voted uniformly with their landlords, and a man's 
 political influence depended on the number of tenants 
 he brought to the poll. For the sake of political influ- 
 ence,from 1800 till about 1820, when the effects of their 
 policy became clear, the influence of the landlords or of 
 the middlemen whom the landlords had put into their 
 own places, and to whom they had delegated their func- 
 * Pari. Eegister. Ireland. XIII. 207. 
 
39 
 
 tions and their power of guiding' the destinies of their 
 coiintr}', was exerted towards the subdivision of the land. 
 In many parts they cut the country up into forty shilling* 
 freeholders. More leases were given then than at any 
 time before or since. Terms of thirty-one, twenty-one, 
 fourteen or seven years were granted, with a life or 
 lives thrown in to create a freehold of the smallest area 
 — as minute sometimes, it is said, as two acres — which 
 a tenant could swear to be of forty shillings value. The 
 practice is mentioned by a number of contemporary- 
 witnesses within the sphere of their own observations ; 
 but it would lead us too far astray to follow the evi- 
 dence. We may rest content with the sentence in 
 the Report of the Devon Commission, that after the 
 passing of the Act of 1793, '' the landlords and middle- 
 " men found the importance of a numerous following* 
 " oftenantr}^, and subdivision and subletting being by 
 '^ this law indirectly encourag'ed, greatly increased."* 
 
 The point is of importance, because it is not uncom- 
 mon to refer to the extreme subdivision of the period 
 as owing to some fatal vice of the Irish character, too 
 inveterate to be checked b}^ moral motives, and as prov- 
 ing tlie impossibility of a peasant proprietary continu- 
 ing- to exist long in Ireland in comfort and prosperit}'. 
 
 No one, I think, will deny that it is a problem of 
 
 * Shaw Mason's Statistical Account of Ireland, 1816, vol. iii. 
 233. Grievances of Peasantry of Ireland, 1822. Minutes of 
 Evidence, H. L. 1825. Evidence before Devon Commissioners. 
 Mr. Kincaid. 7. Q. 15. 33 Geo. III. c. 21. Irish St. 10 Geo. 
 IV. c. 8. 
 
40 
 
 great difficulty to calculate the direction and value of 
 the resultant of the antag-onistic forces which will tend to 
 support or to destroy a peasant proprietary in Ireland : 
 but this very difficulty should make us the more careful 
 to estimate the forces arig-ht. In reasoning* from the 
 past to the future, we must remember that the influ- 
 ence and example of landlords will not for the future be 
 thrown, as it was thrown in the past, into the scale of 
 subdivision. 
 
 The political cause which led to subdivision has pre- 
 sented itself first to our notice as being- first in 
 chronological order ; but a more powerful cause was 
 the increase of value in Irish produce, and the ease 
 with which rents were paid during* the long- war. In 
 presence of the war the restrictions upon the importa- 
 tion of Irish produce into England g-ave way. First, 
 the ports were opened, and in 1806 trade in corn with 
 Eng-land was made free. Cultivation in Ireland was 
 extended ; the demand for labour was very g-reat ; the 
 population rapidly increased, and with the increase, 
 the land became more and more subdivided. 
 
 This w^as a state of things which could exist only 
 under w^ar prices. Peace, in 1815, brought on a 
 crisis, and land fell in value suddenly and rapidly. 
 Both the immediate occupiers and the middlemen were 
 unable to pay the rents reserved. For miles tog-ether the 
 country was abandoned b}^ the tenants.* The Statute 
 of 1816 already referred to as introduced to facilitate 
 ejectment, recites that tenants held over without paj^- 
 * Hansard, Pari. Debates, March 15, 1816. 
 
41 
 
 ing*, that tenants deserted their tenements in debt, 
 and that they made away with the crops. The 
 distress was ag-g'ravated by a bad year in 1817, by the 
 failure of some of the country banks in 1819 and 1820, 
 and by famine in 1822. The system of manag-ement 
 hitherto pursued was now seen to have broken down. 
 " A general impression/* said Dr. Doyle, the Roman 
 Catholic Bishop of Kildare, to the Committee of the 
 House of Commons appointed in 1830 to consider the 
 state of the poorer classes in Ireland, " was produced 
 in the minds of all persons that a pauper population 
 spread over the country would go on increasing-, and 
 the value of the land at the same time diminishing-, till 
 the produce would become insufficient to maintain the 
 resident population." 
 
 The great evils of the time are set out clearl}^ in a 
 Report of the House of Lords in 1826. They were the 
 minute subdivision of land ; the number of persons in- 
 tervening* between the head landlord and the immediate 
 occupier ; the extreme difficulty of preventing the 
 subletting" of land, and the power possessed by every 
 intermediate landlord to distrain upon the occupying* 
 tenant.* 
 
 To meet these evils, the landlords became anxious to 
 substitute for middlemen a system of personal managfe- 
 ment, or of ag^enc}^, so as to be in immediate contact 
 with their tenantry, and to consolidate their farms. 
 This change was alike necessary and wise, and of 
 unmino'led benefit both to the landlords and to the 
 tenants who were allowed to remain in possession. 
 
 * Koport of Comraission, H. L. Parliamentary Papers, 1826. 
 
42 
 
 But it was carried out under a panic, harsh l}^, and 
 without provision for the tenants who w^ere dispossessed 
 with a view to the consolidation of the farms ; and to 
 them it brought^ in the languag-e of the Committee of 
 the House of Commons of 1830, ^^ a fearful extent 
 of suffering/'* 
 
 Nothing- will be gained by dwelling on that suffer- 
 ing beyond what is necessary for our inquir3^ To 
 these ejectments and clearances of estates must in a 
 great measure be traced the chafing of the Irish 
 under the system of management then introduced; 
 and from them are to be dated their reiterated appeals 
 for protection against harsh and capricious eviction. 
 
 In the period before us the system of leaving im- 
 provements to be made by the tenants reached its 
 climax, and began to be modified ; and in this period 
 also it attracted the attention of English statesmen 
 and of Parliament. We have observed the sj^stem in the 
 last century^ but it was of still earlier origin, for Sir 
 William Petty^ in his valuation of Ireland in 1672, 
 makes one entry for the value of the land to the 
 landlords, and another with the heading, '^ Benefit 
 of leases and tenants' improvements.'^f It is a 
 system which grew up naturalh', and, notwithstand- 
 ing the objections urged against it, the system is in 
 many respects the best suited, at least with some modi- 
 fications, to the peculiar conditions of Ireland. Ireland 
 
 * Eeport of Committee on the state of the Poorer Classes in 
 Ireland. H. C, 1830, p. 8. Minutes of Evidence. H. L. 
 1825: p. 59. 
 
 t The Political Anatomy of Ireland, 1672. 
 
43 
 
 is a land of small holdings^ and it would be very diffi- 
 cult for any proprietor^ not possessed of ample means, 
 to build a cottag'e and a byre for every holding*. The 
 system, therefore, is convenient to the landlord. It is 
 no less to the taste of the tenant. The landlord, if he 
 builds must charg-e the tenant interest upon the expen- 
 diture incurred, while the tenant, when he builds, incurs 
 no actual outla}^, except for some of the materials, but 
 expends labour of his own and of his family, which 
 would not have been exerted at all but for the building*. 
 It is, therefore, for the advantage of the tenant to 
 build, and to save the interest he would have to pay to 
 the landlord. Ag-ain, the landlord would almost of 
 necessity build on a scale which the Irish tenant would 
 not appreciate. The Irish tenant prefers a low deg-ree 
 of comfort in his dwelling*, and the pleasure of hoarding 
 his mone3% He may be mistaken in the extent to which 
 he indulges his taste, but his mistake must be treated 
 with respect, for his cabin preserves morality under cir- 
 cumstances in which in England we pronounce mo- 
 rality impossible. Nor is he singular in his taste ', he 
 shares it with the small holders of France. There are, 
 however, some results of the system which must not be 
 overlooked. It makes the landlord and the tenant co- 
 partners in the results of the cultivation, especially in 
 the reclamation of Bog Land, where the reclamation 
 gives the land nearW all its value, in shares of which 
 the respective proportions are not easily defined, and 
 are open to misunderstanding. It raises in the mind of 
 the tenant a sentiment of proprietorship. No reason- 
 
44 
 
 ing* will dislodg-e the sense of ownership felt by the 
 peasant who has built a cabin on an acre of mountain 
 land reclaimed by himself, even thoug-h the reclamation 
 may have been affected by means as rude as a few cart- 
 loads of lime, and the reclaimed soil grow only potatoes 
 and a scanty crop of oats. 
 
 Without a doubt there is a sentiment towards the 
 land in Ireland^ different from anything" we have in 
 this country, and for a parallel to which we must g-o 
 to France. It is distinctl}- traceable to causes at work 
 in this period. The national part of the sentiment is 
 traceable to the revival of the feeling* of nationalit}^ 
 by the French Revolution — a feeling* which the evi- 
 dence of Swift and the want of interest shown by the 
 Irish in the Scotch Rebellions of 1715 and 1745 
 prove to have become dormant after 1700 ; and the 
 individual part of the sentiment is traceable to the fact 
 that from 1700 to 1820, the g-reat body of the pea- 
 santry were left to do as they liked or as they could 
 wdth the land^ and the great body of the landlords 
 accepted or chose the position which in England we 
 assig-n to the owners of rentcharg-es. These results 
 of the system shew the necessit}^ of having* the rela- 
 tions of the two parties accurately defined by con- 
 tract^ or in the absence of express contract^ clearly 
 determined by law. In Ireland^ at the present 
 moment^ these relations are neither accurately defined 
 by contract, nor clearly determined by law. 
 
 Let us now pass on to evidence respecting* tenants' 
 improvements. It is not so much the amount of the 
 
45 
 
 improvements, as the S3'stem which must eng-iige our 
 attention. Mr. Steuart Trench, in his evidence before 
 the Committee of the House of Lords in 18G7, de- 
 scribed one barony, of about forty thousand Irish acres, 
 as having" been valued, in 1 769, at £8,000 a year. By 
 1837, the rental had risen to £54,883. The general 
 rise in the price of produce and in the value of land, 
 contributed, of course, to this rise of rent, but the 
 main cause, he said, beyond all question, was the 
 necessity of cultivation due to the rapid and enormous 
 growth of population. In 1841, there were eig'ht 
 thousand tenants, representing- a population of forty- 
 four thousand persons, a human being for every acre. 
 " This vast population," he continued, " driven to ex- 
 tremities to support themselves, gradually converted 
 by their own labour, the land of the barony from being 
 a waste, unenclosed alder-plain, into one of the most 
 cultivated districts in Ireland, well enclosed and arable 
 land, while scarcely an acre of reclaimable land, now 
 lies unreclaimed. ''* 
 
 Wakefield sums up the observations on this head 
 scattered through his two volumes on Ireland in the 
 sentence, ^' The landlord has no repairs to make." f 
 The subject was insisted upon before the Committee of 
 the House of Lords of 1825, by Mr. Shaw Mason, who, 
 from an official position which brought him into com- 
 munication with the clergy, and from being entrusted 
 with the conduct of the Census of 1821, spoke from 
 
 * Report of Committee on the Tenure (Ireland) Bill. Q. 19. 
 t Wakefield, i. 307. 
 
46 
 
 wide experience, by Mr. Foster, and by Sir Frankland 
 Lewis. The evidence of the latter witness is of value, 
 as the evidence of a sensible English landlord who had 
 acquired some official knowledge of Ireland : — 
 
 " What are the circumstances in the present law between 
 landlord and tenant which appear to you to conduce to the 
 disturbed state of Ireland ? 
 
 " I can answer that question only as a landlord, and certainly 
 not as a lawyer. It is impossible for any person who knows the 
 relations between landlord and tenant in England, not to be 
 struck with the differences in the relation between landlord and 
 tenant in Ireland. I am imperfectly acquainted with the laws or the 
 circumstances which have brought about that effect. Nothing is 
 more striking in Ireland than that a number of burdens which 
 English landlords are willing to take upon themselves the Irish 
 landlords do not find it necessary to take upon themselves. In 
 the maintenance of a farm in England all the expensive part 
 of the capital employed upon a farm is provided by the land- 
 lord ; the houses, the gates, the fences, and the drains are all 
 provided by the landlords. Everybody knows that in Ireland 
 that is not the practice; at the same time that the landlord 
 obtains as rent in Ireland a much larger proportion of the value 
 of the produce of the land than he obtains in England, and in 
 parts of Ireland it appears to me that the landlord sometimes 
 obtains for rent more than is produced by the land. I believe in 
 some parts of Ireland, where the linen- weaving is established, 
 more goes to the landlord in some cases than is produced by the 
 land. I believe in some parts of Ireland, where the land is 
 extremely subdivided, and where the cottier tenants are persons 
 who live partly by labour for hire and partly by what they can 
 extract from the small portion of oats or potatoes, and the cabin 
 they have, they pay more rent than is actually the produce of the 
 land. I have been informed there are parts of Connaught where 
 it is not unfrequent that a man plants his potatoes at the proper 
 
47 
 
 season, and shuts up his cabin, and goes to England and labours, 
 and perliaps his wife and children beg about the roads ; and when 
 be comes back to dig his potatoes, with the wages of his English 
 labour in his pocket, he is able to pay a larger sum for rent than 
 he could have extracted from the land ; but what system of leases, 
 or what system of habits, or what combination of both, may have 
 produced this in Ireland, and not in both countries, is that which 
 would require long observation to answer." * 
 
 The S3'Stem of tenants' improvements was modified 
 when the landlords undertook the personal manag^e- 
 ment of their estates ; and some landlords tried the 
 English plan, while others assisted their tenants in 
 making- the permanent improvements. 
 
 The Dukes of Leinster have for many 3^ears adopted 
 the plan of erecting* the farm buildings. 
 
 On the Duke of Devonshire's estate Colonel W. S. 
 Currey, the agent, told the same Committee that after 
 1817 a lease of twenty-one years was granted, instead 
 of the previous and longer terms, in order to check 
 subdivision ; and that improvements were made jointly 
 with the tenants : — 
 
 " Are the expenses of repairs of fences defrayed by the Duke 
 or the tenant ? 
 
 "Whenever a tenant is put upon a farm we endeavour to 
 arrange proper farm buildings for him. If a man has property, I 
 think it an object to induce him to embark his property upon it ; 
 and I say, if you will put up the farm buildings your rent shall 
 be lowered ; if you do half, I will pay the other half. "Where the 
 farm is a large one, perhaps a year's rent does the thing. Then 
 in other instances, where I have thought it would rob the tenant's 
 capital too much, I have agreed to lay out the whole of the money 
 
 * Minutes of Evidence. H. L. 1825, p. 39. 
 
48 
 
 in buildings, and have added a small addition to the rent on that 
 account. With respect to fences and draining, I have done a 
 good deal of that at the Duke's expense ; such as principal 
 fences and leading drains, leaving the interior to be done by the 
 tenant/'* 
 
 I have selected tlil3 evidence, because it can easily 
 be verified. Much more might be added, but this is 
 enough to illustrate the system, and its modification in 
 this period. 
 
 In 1835 Mr. Sharman Crawford introduced the 
 first Bill into Parliament to g-ive compensation to 
 tenants for their improvements. He defended it by 
 the evidence given before the House of Lords, and 
 already referred to. It has proved to be the first of 
 more than twenty Bills with the same, object. Par- 
 liament and the country were neither of them then 
 alive to the gravity of the subject, and the express 
 contracts of the leases under which Ireland was then 
 held interposed a difficulty, and caused opposition to 
 the measure. Again, in 1848, Mr. Crawford brought 
 the subject forward, and in consequence Sir Robert 
 Peel promised an investigation, and his promise re- 
 sulted in the labours of the Devon Commission. 
 
 The evidence on the system before us cannot be 
 summed up more fairly than in the following passag'es 
 from the Report of that Commission : — 
 
 * Minutes of Evidence. H. L., 1825, p. 185. Minutes of 
 Evidence on Tenure (Ireland) Bill. H.L. 1867. Q. 2207. See 
 also Lord DufFerin's Evidence : Minutes of Evidence of Com- 
 mittee on Tenure and Improvement of Land (Ireland) Acts. 
 Q. 980, 990, (fee. 
 
49 
 
 " It is well knowa that ia England aad Scotland, before a land- 
 lord offers a farm for letting, he finds it necessary to provide a 
 suitable farm house, with necessary farm buildings, for the proper 
 management of the farm. He puts the gates and fences into 
 good order, and he also takes upon himself a great part of the 
 burden of keeping the buildings in repair during the term ; and 
 the rent is fixed with reference to this state of things. Such, at 
 least, is generally the case, although special contracts may occa- 
 sionally be made, varying the arrangement between landlord and 
 tenant. 
 
 " In Ireland the case is wholly different. The smallness of the 
 farms, as they are usually let, together with other circumstances, 
 to which it is not necessary to advert, render the introduction of 
 the English system extremely difficult, and in many cases im- 
 practicable. 
 
 " It is admitted on all hands, that according to the general 
 practice in Ireland, the landlord builds neither dwelling-house nor 
 farm-offices, nor puts fences, gates, &c., into good order, before he 
 lets his land to a tenant. 
 
 " The cases in which a landlord does any of those things are the 
 exceptions . 
 
 " The system, however, of giving aid in these matters is be- 
 coming more prevalent. 
 
 " In most cases whatever is done in the way of building or 
 fencing is done by the tenant, and in the ordinary language of 
 the country, dwelling-houses, farm-buildings, and even the making 
 of fences, are described by the general word 'improvements,* 
 which is thus employed to denote the necessary adjuncts to a 
 farm, without which, in England or Scotland, no tenant would be, 
 found to rent it. 
 
 "Under the same common term of improvements are also 
 included various agricultural operations, such as draining, deep, 
 trenching, and even manuring, which ought to stand upon a very 
 difierent footing from buildings. 
 
 " It will be seen by reference to the Evidence, that many wit- 
 nesses of various classes have spoken of the discouragement to 
 
 E 
 
50 
 
 improvement that arises from the want of some certain tenure in 
 the Jand. 
 
 " Some of these refer to the necessity for enforcing the grant 
 of leases, as a remedy for this evil ; while others again seem to 
 think that the same end will be as effectually obtained by some 
 legislative'provision, securing to the tenant, under certain circum- 
 stances, a fair remuneration for any expenditure of capital made 
 by him of labour or capital in permanent improvement on the 
 farm. 
 
 " Although it is qertainly desirable that the fair remuneration 
 to which a tenant is entitled for his outlay of capital or of labour, 
 in permanent improvements, should be secured to him by volun- 
 tary agreement rather than by compulsion of law ; yet, upon a 
 review of all the evidence furnished to us upon the subject, we 
 believe that some legislative measure will be found necessary in 
 order to give efficacy to such agreements, as well as to provide 
 for those cases which cannot be settled by private arrange- 
 ment. 
 
 " We earnestly hope that the Legislature will be disposed to 
 entertain a Bill of this nature, and to pass it into law with as 
 little delay as is consistent with a full discussion of its principle 
 and details. 
 
 " We are convinced that in the present state of feelings in 
 Ireland, no single measure can be better calculated to allay dis- 
 content, and to promote substantial improvement throughout the 
 country. In some cases, the existence of such a law will incline 
 the landlord to expend his own capital in making permanent 
 improvements. In others, he may be called upon, on the eviction 
 or retirement of tenants, to provide the amount for which their 
 claims may be established under the Act." 
 
 A quarter of a century has elapsed since this pas- 
 sage was written^ and necessary legislative measures 
 still remain to be passed. 
 
 Lastly, Ulster tenant-rig-ht came into notice, and 
 certainly g-ained g'reatly in strength, even if it did not 
 actually spring* up in the period under our review. 
 
51 
 
 On this last point there has been some dispute. Man\^ 
 persons carry Ulster tenant-rig-ht back to the original 
 settlement of Ulster ', some looking- upon it as a com^ 
 promise made by the Undertakers with their tenants 
 for having- neglected to carry out fully the condition, 
 by which they were bound to give their tenants 
 certain estates; others looking* upon it as arising" 
 from the tenants of the original g-rantees being* united 
 to them for common defence, and being* ^^ kindly 
 tenants rather than tenants for money." These, how- 
 ever, are mere conjectures. There is no evidence, as 
 far as I know, showing* the existence of the tenant- 
 rig-ht even in the last centur\% Mr. Butt sees some 
 proof in the rising of the Hearts of Steel in 1771, 
 which was provoked by the refusal of the Marquis of 
 Donegal to renew the leases on his estates in Down^ 
 Antrim, and Donegal, except on the payment of large 
 fines. His refusal was felt to be a great hardship, but 
 we do not find it treated at the time as a violation of 
 any customary rights. On the contrar}'^, in an account 
 written in 1780, obviously by an author well acquainted 
 with the event, for he enters into details not told in 
 the historical accounts to which we are generally 
 referred, there is no mention of an}'^ customary right 
 but the refusal is contrasted with the conduct which 
 would have been adopted, as the author argues, by 
 Enjrlish landlords.* 
 
 * A View of the present state of Irelaud, 1780, p. 53. There 
 is a short account of one of tlie trials of some of the Hearts of 
 Steel, in The Gentleman's Magazine, 1772 : but no allusion to 
 any customary right comes out in the evidence for the prisoners. 
 
 E 2 
 
52 
 
 Lord DufFerin considers Ulster Tenant-Eight as 
 havino- oriofinated during- the war, and havinp- arisen 
 out of the increased value to the lessees in consequence 
 of the rise of prices^ of leases granted early in the 
 war. He is corroborated by a statement made by 
 Mr. Foster, that the leases of that time had, g-enerally 
 speaking'^ become beneficial to the occupying tenants 
 of Ulster.* It is a remarkable fact, pointing* the same 
 way, that the custom was not mentioned in the early 
 inquiries of the century, and was almost^ if not entirely, 
 unknown to Parliament till 1845, and then it was 
 found to be a custom not acknowledged in law, but 
 firmly established, and highly prized by the inha- 
 bitants of Ulster. The answer has often been quoted, 
 Avhich the agent of the Marquis of Londonderry, on 
 whose estate in Down the tenant-right was fully ac- 
 knowledged then as it is now, gave to the question of 
 the Commissioners whether a curtailment of the tenant- 
 right could be carried out without danger to the peace 
 of the country. ^^ I am sure,'' he rephed, ^^it cannot. 
 You would have a Tipperary in Down if it was at- 
 tempted." I Since 1845 the merits and faults of the 
 custom have been constantl}^ discussed by every writer 
 in Ireland, and before every Parliamentary Committee 
 sitting to inquire into the state of Ireland. There 
 are, I am told, one or two persons still living who say 
 they remember the beginning of the custom about tiie 
 
 * Minutes of Evidence. H. L. 1S25, p. 57. 
 ■f Evidence before Devon Commission, 105. Q. 42. 
 
53 
 
 time at which Lord Dufterin places it, and that the 
 ])aymeiit made by the incoming- to the outg-oing* tenant 
 under the tenant-rig-ht was orig*inally called a payment 
 for peaceable possession. 
 
 Lord Dufferin thus described the custom to a Com- 
 mittee of the House of Commons in 1865 : — 
 
 " Tenant-right is a custom under which the tenant farmers of 
 the north of Ireland, or, at all events, in those districts where 
 that custom prevails, expect when they have occasion to give up 
 possession of their farms, that their landlords will allow them to 
 obtain from the incoming tenant such a sum as shall remunerate 
 them for their improvements upon those farms. But at the same 
 time, though I think that that is a perfectly legitimate definition 
 of the custom of tenant-right as now understood, there is un- 
 doubtedly another element which exists, and which influences the 
 operation which I have described. But that element is a very 
 impalpable one, because, although of late, since the question has 
 been agitated and the real elements of tenant-right have been 
 analysed by public discussion, even the farmers themselves will 
 describe their claim as a claim on account of improvements, there 
 can be no doubt that the sums which were paid by the incoming 
 tenant to the outgoing tenant very often had no relation what- 
 ever to the real value of those improvements, and the thing sold, 
 instead of being called the tenant-right of a farm, which is now 
 the term generally applied to it, used more commonly to be 
 called the goodwill of the farm, and under that designation I 
 think a different thing would be understood than a payment made 
 for the value of the improvements into the enjoyment of which 
 the incoming tenant was about to enter." * 
 
 The evidence collected on the subject shows that 
 
 * Minutes of Evidence on Tenure and Improvement of Land 
 (Ireland) Act. II. C. 18G5, Q. 9G6. 
 
54 
 
 Lord DufFerin is right iu dividing' the sum thus paid 
 into two parts — the part paid for the improvements of 
 the outgoings tenant, and the part paid for goodwill, 
 or, as others have said, simple occupation. He also 
 remarked that these parts vary inverseh^, the amount 
 paid for goodwill diminishing* in proportion to the 
 value of the improvements. Practically the tenant- 
 ri"'ht is estimated between the incominof and the out- 
 g'oing tenant, not upon the basis of the improvements 
 so much as according to the scale fixed b}^ the desire 
 at the time for the plot of land which is the subject of 
 transfer. The character of the landlord and the 
 prospect of the rent remaining- unaltered are most 
 important elements of the calculation, and tenant- 
 right rises as rent is low. Hence it is paid where there 
 are no improvements to sell; and hence also if we 
 separate as above the whole amount into two parts, w^e 
 may say that the part paid for simple occupation 
 represents so many years purchase of the difference 
 between the rent at which the land is let, and the 
 rack-rent which a tenant eager for the land is ready to 
 give. 
 
 So far the transaction lies between the two tenants. 
 The landlord must now be brought in. First, the 
 incoming tenant must be approved of by the landlord 
 and in some instances is selected by him. Secondly, 
 the landlord has an admitted right to payment for 
 arrears of rent out of the tenant-right money before 
 any other creditor. So completely is this the case that 
 
55 
 
 the tenants defend the custom on this ground ; and Mr. 
 Steuart Trench expressed a decided opinion that as a 
 mere money question tenant-rig*ht is practically in 
 favour of the landlord, for the landlord is insured by 
 the tenant-rio-ht aofainst loss from arrears of rent on 
 the insolvency of his tenant.* When the system is in 
 full force, the whole transaction is arranged, if not in 
 tlie office of the estate, 3'et with the co^-nizance of the 
 ai>*ent. In some instances the aofent endeavours to 
 regulate the amount paid from the fear that an exces- 
 sive payment will lessen the tenant's means to do 
 justice to the farm. In these cases the arrears of rent 
 are openly paid. Very often a landlord, averse to the 
 consequences of the S3^stem, declares that he does not 
 sanction the transaction. But the outgoing* tenant 
 leaves ; the incoming- tenant broug-ht to him by the 
 outg-oing tenant enters with his approval, and the 
 arrears of rent are found paid. ^^ He pretends, as it 
 were," says Mr. Trench, "to know nothing- of how 
 tbis is managed; he pockets the money produced 
 by tenant-right, but still maintains that he does 
 not acknowledge the system/' 
 
 Mr. Kincaid, an ag-ent of large experience, sa3's : — 
 
 " Tenant-right means two or three different things. It means, 
 iu the first place, possession of the land, irrespective altogether 
 of the state or condition in which you get the land and buildings. 
 Secondly, it includes improvements made by the tenant ; they will 
 increase the amount of tenant-right ; if the land be in a high state 
 
 * Minutes of Evidenc2. H. L. 1867. Q. 14. 
 
66 
 
 of cultivation, and tlie houses and buildings in good repair, the 
 tenant-right will be Increased ; thirdly, the question of rent will 
 enter, to some extent, as an ingredient in the calculation, and 
 associated with that will be the character of the landlord. They 
 are nearly the same points, because if you get under what is called 
 a good and liberal landlord, who does not charge very high rents 
 for his land, a tenant will give a larger amount of tenant-right fine 
 for a farm thau he would under a very severe landlord, who 
 screwed out the last penny he could get as rent for the land."* 
 
 These are descriptions of the transaction^ and not 
 definitions of the rio-ht claimed. In 185*2^ when the 
 late Mr. Justice Shee and Judge Keogh brought a 
 Bill into the House of Commons for the protection of 
 Ulster tenant-rig'ht, it became necessary to reduce the 
 right to a legal proposition^ and they thus defined it 
 in one of the recitals of the Bill : — " 
 
 " "Whereas a right of continued occupation is enjoyed by the 
 tenant in possession, subject to the payment of the rent to which 
 he is liable, or such change of rent as shall be afterwards settled 
 from time to time by fair valuation, with a right to sell his occu- 
 pation to any solvent tenant to whom the landlord shall not make 
 reasonable objection, and that such tenant shall not be evicted by 
 the landlord without being allowed to sell his interest, or else 
 being paid by the landlord the value thereof, as if sold to a solvent 
 tenant."t 
 
 The evidence must^ I think^ lead us to agree with 
 Lord Dufferin in his account of the origin and date 
 of Ulster tenant-right 3 and this date and origin 
 invest the custom with greater importance than if it had 
 to be carried back two centuries and a half^ to causes 
 
 * Minutes of Evidence. H. L., 18G7. Q. 1469. 
 t Parliamentary Papers, 1852-3. 7. 
 
57 
 
 we could notassig'n. It must strike everyone that the 
 custom is contemporary with the recent agricultural 
 customs of Eug-land, of which we chose an instance 
 in Lincolnshire, and like those customs, sprang" out of a 
 state of growing- prosperity. The Ulster custom, like 
 the Lincolnshire custom, is desig-ned to cover labour 
 and materials attached to the soil beyond the protec- 
 tion of the common law, for whatever name the pay- 
 ment took, the custom arose when the management 
 of the soil was left wholly with the tenant ; and like 
 the Lincolnshire custom, it is a recognition, first 
 between the tenants themselves, and when admitted by 
 the landlord, between the tenants and the landlord, of 
 the creation by the tenant of a property, beyond the 
 scope of the maxims of common law. Similar mo- 
 tives are at work; similar interests have to be pro- 
 tected ; but the customs have run different courses. 
 The Lincolnshire custom would be admitted at the 
 Lincoln assizes ; but the Ulster custom has never 
 been acknowledged as law. From time to time at the 
 assizes in Ulster, counsel have offered evidence of the 
 custom, but the Judges have always ruled the evidence 
 to be inadmissible. Nor is it possible to dissent from 
 this ruling. The maxim of law is a maxim of com- 
 mon sense — that a custom must be certain ; and what 
 " certain " means, may be illustrated by an old instance 
 in our law books, where a custom to pay at one time 
 twopence an acre in lieu of tithes, and at another time 
 threepence at the pleasure of the person paying, was 
 held bad for uncertainty. The payments in Lincoln- 
 
58 
 
 shire are certain_, because, however intricate the ac- 
 count, they are calculated on the basis of labour done. 
 The payments in Ulster are not reducible to certainty. 
 Still the custom does contain elements of certainty, and 
 is easily capable — to borrow a word from the Statute 
 of Edward the First, applied to the custom of Wales 
 — of being- reformed. The custom is on the brink of 
 being' a g"ood custom. And it is a curious fact, which 
 I can but record without attempting* to explain, that 
 having g'one so far, it has not gone further, and been 
 reformed, either upon the sug-gestion of some far- 
 seeing- judge, or throug-h the necessities of the persons 
 interested, into a g'ood custom. But thoug'h not a g'ood 
 custom in law, we shall find later, I think, that it g-ives 
 equitable protection to the tenant, and offers elements 
 for a solution of the difficulties of Irish tenure, which 
 no wise legislator can afford to neglect. 
 
 The new system of the personal management of 
 landlords begun about 1820, was in full operation by 
 1840. With it came another chano-e, which brino-s 
 US to the present state of tenure. The sixty-one years 
 leases, granted after the Act of 1777, and the 
 later and shorter leases of twenty-one years — a com- 
 mon term after 1816 — all fell in about this date. 
 Then for a variety of reasons landlords refused to 
 grant new leases. It has lately been said that the 
 rebuff which their political power had met with by the 
 election of O'Connell for the County of Clare, was a 
 main reason. The evidence, however, already quoted, 
 shows that far more powerful reasons had for some 
 
59 
 
 years previously influenced them — the dread of a 
 })auper tenantry^ the sig-ht of the subdivision brought 
 about under the leases just expired, and the desire of 
 having* uncontrolled manag-ement of their own pro 
 perty. It seems to me fairer to say, that when the 
 Act of 18C9 raised the qualification necessary for 
 the franchise, and political influence w^as no longer 
 to be gained by carving out numerous and minute 
 leaseholds, this motive in favour of granting leases 
 ceased, and the reasons against granting leases were 
 left to their full swing. The evidence before the 
 Devon Commission shows that many tenants at that 
 time were not very anxious for leases. The high 
 stamp duty influenced some. Others who had suf- 
 fered under the high rents demanded by middlemen 
 and sublessees, probably hoped that when brought 
 face to face with their superior landlords, the conditions 
 of the bargain might be more moderate and more 
 flexible without a lease. Both tenants and landlords 
 anticipated dividing the portion of rent which had 
 hitherto gone to the intermediate lessees. Nor has 
 the anticipation proved false. The immediate contact of 
 the landlord and tenant has resulted in an increase of 
 the rent of the landlord, and a decrease of the amount 
 paid by the tenant. Throughout the last century, and 
 the first thirty years of the present century, the com- 
 ])laints of the excessive rents paid by the occupier of 
 the soil were unvaried and uncontradicted ', but at the 
 present time, by the consent of nearly all who have 
 examined the sulject, Ireland is not overrented. So 
 
60 
 
 far the tenants have g'amed by a system in which per- 
 sonal manag-ement, and the absence of leases^ have been 
 blended. Thus Ireland glided naturally into a stag-e 
 of tenure without lease^ of tenure^ that is^ according* to 
 law, from year to year ; and in that stage the country 
 still continues. To this tenure the remarks in the fol- 
 lowing' pages are limited. And amidst the disad- 
 vantag-es presently to be enumerated, the tenure has 
 one advantag-e ; it admits more readily than tenure 
 under leases with express covenants, of the application 
 of legislative remedies. 
 
 V. The period from 1846 to the present time has 
 been marked by the establishment of the Landed 
 Estates Court; which has brought into full view the 
 faults of the present tenure; by the increased share 
 landlords have taken in improvements, which has 
 sensibly modified the state of accounts between land- 
 lord and tenant ; and by some legislation on the sub- 
 ject of our inquiry. We will take these three events 
 in order. 
 
 From its first introduction as the general system in 
 Ireland, tenure without lease beg-an to betra}^ its weak 
 points. Introduced by the landlord then to facilitate 
 the consolidation of farms, it necessarily rendered the 
 position of tenants uncertain. The Eeport of the Devon 
 Commission says, : — 
 
 *' The uncertainty of tenure is constantly referred to as a 
 pressing grievance by all classes of tenants. It is said to paralyze 
 all exertions, and to place a fatal impediment in the way of iai- 
 provement." 
 
61 
 
 The evidence is almost unanimous that the sense of 
 this g-rievance has gone on increasing-. 
 
 In the second place, the tenure lodges too much 
 power in the hands of landlords and ag-ents; for it is 
 obvious, without adducing- examples, which might be 
 supposed to be adduced to raise a prejudice, that energy 
 in enforcing- the rules made for the manag-ement of an 
 estate will infallibly sometimes pass, and still more often 
 appear to pass, into vexatious interference with the 
 domestic affairs of the tenants. 
 
 Thirdly, the tenure leads to results of great hardship. 
 We can draw a proof from the records of the Courts of 
 Justice. There was a case tried in 1865, arising- out 
 of some evictions at Rathcore, in the county of Meath, 
 which will offer us an illustration, not the less in- 
 structive because under the particular circumstances 
 the evicted tenants recovered heavy damages from their 
 landlord. The case deserves our attention, were it 
 only that it is constantly referred to in Ireland. 
 
 The property upon which these evictions occurred 
 contained about five hundred acres, and was held by the 
 defendant in the case, Knox, for a residue of a term of 
 ninety-nine years, expiring- in 1883, and purchased by 
 him in 1824. It was occupied by thirteen tenants, of 
 whom the plaintiff, Clarke, was one. He occupied about 
 eighty acres, a farm held by his family for forty years, 
 at first under a lease of twenty-one years,and afterwards 
 ^vithout lease. He was an improving* tenant, and paid 
 his rent with exemplary reg'ularity. The agent, a man 
 of honour and trusted by the tenants, managed the 
 
C2 
 
 property ; and Knox never interfered till 1861. This 
 fact was a turning* point in the case, as it made Knox 
 responsible in law for the representations of the a^ent 
 to the tenants. In 1857 one D^-as boug-ht the rever- 
 sion of the property as a speculation^ and then soug-ht 
 to buy up the remainder of Knox's term. He wanted 
 the propert}^ without the occupying- tenants^ and opened 
 neg'otiations with Knox on the matter in December^ 
 1863. The ag-ent was throug-hout kept in the dark as 
 to these neg'otiations. 
 
 Before this, in March 1851, the aofent suo-ofested to 
 Clarke to take a lease for twenty-one years^ and terms 
 were proposed. A few days afterwards^ Knox in person 
 served a notice to quit on the tenants^ telling- Clarke 
 that the notice was a mere form, intended to compel 
 them to take leases. Clarke, in alarm^ complained to 
 the agent, who bade him not to be uneasy^ since Knox 
 was satisfied with the terms proposed^ and would g-rant 
 the lease. This notice to quit was not acted upon. 
 The lease^ thoug-h promised again and ag-ain, was not 
 granted^ and in March, 1863^ another notice to quit 
 was served. New complaints were quieted by en- 
 courag-ement to Clarke to go on with the drainage and 
 stables he was beginning, as securely as if he had the 
 lease. In 1864 ejectments were serv^ed. Clarke then 
 discussed with the agent whether he should defend the 
 ejectment. He did not want to vex Knox^ but he 
 was afraid, he said, of being ^^ nobbled'^ by the Landed 
 Estates Court. Again, the agent assured him, and 
 begged him to assure the other tenants that Knox 
 
63 
 
 would never disturb one of the Rathcore tenants. In 
 January, 1865, D^^as appeared on the property with 
 one hundred and twenty policemen, and the tenants 
 were put out. 
 
 Clarke then sued Knox on the ground— it is worth 
 noticing* the circuitous mode of relief to which it was 
 necessary to resort — that Knox having* induced Clarke 
 not to defend the ejectment by a promise and a 
 fraudulent representation that he should not be evicted, 
 evicted him. A special jury of King's County found 
 a verdict in his favour, with £800 as damag-es. 
 
 There was one touch of bitter humour in the trans- 
 action. When Dyns appeared on the land, he said to 
 Clarke : — " I will give 3*ou a piece of advice ; as long- 
 as you live, never take land from any man without a 
 lease. I was robbed in the same way in County 
 Meath.''* 
 
 It has been one of the incidental results of the es- 
 tablishment of the Landed Estates Court to brino' the 
 hardship of the tenure into full view. Between 1848, 
 the date of the establishment of this Court under the 
 title of the Encumbered Estates Court, and 1 865, pro- 
 perty to the value of twenty-five to thirty millions had 
 been sold in this Court. Now, it is an inevitable re- 
 sult of the present state of things, that the improve- 
 ments of a tenant without a lease not being* secured to 
 him by law must pass as part of the consideration for 
 the purchase-money paid by the purchasers to the 
 seller ; and thus between the purchaser and the seller, 
 
 ♦ Eeport of Case of Clarke v. Knox, Dublin, 1865. 
 
64 
 
 the tenant g-oes to the wall. Had the tenant^ as he 
 ought to have^ a legal claim for compensation for those 
 improvements, he would have a claim, in proportion to 
 their value, upon the purchase-monej. 
 
 The strongest and most obvious cases of this hard- 
 ship have occurred under Ulster Tenant-Right. The 
 following is the evidence of Judge Longfield, then Judge 
 of the Landed Estates Courts. It will go far to ex- 
 plain the growing fear of the destruction of this right : — 
 
 " Is it not the fact, that practically, tenants have been handed 
 over from one set of landlords to the other without much consi- 
 deration of any claims that they might have ? 
 
 " Without any consideration whatever ; I could not lawfully 
 reject one man who came to bid for land, because he would be a 
 worse landlord than another who would not gWe so much. 
 
 " "With regard to the north of Ireland where tenant right pre- 
 vails, our court acts with peculiar hardship upon them by sub- 
 dividing the land, and a tenant who had an interest in land which 
 be could sell for £10 or £15 an acre, while he had a nobleman 
 or gentleman of several thousands a-year over him, finds that he 
 has substantially nothing at all when he has as landlord, a man 
 who buys on speculation an estate of £100 or ^6150 a-year ; the 
 existence of the tenant right is, in fact, a bonus to bad landlords, 
 and enables them to outbid those who would be good landlords. 
 I will give an example : supposing that the tenants on an estate 
 pay 2t*200 a-year, and their tenant right will probably sell for ten 
 times that at least, very frequently for 10 years' purchase ; a good 
 landlord, who does not mean to disturb the tenants, values it as 
 an estate of £200, and a bad landlord, a man who is disposed to 
 screw up the rent to the utmost legal sum which he can get for it, 
 values it at ^-€300 a-year : of course he will outbid the good land- 
 lord, that is, the landlord who will respect the old traditions of 
 the estate."* 
 
 * Minutes of Evidence. H. C. 1865. Q. 30. Q. 33. 
 
65 
 
 This testimony from such high authority is, perhaps, 
 sufficient, but I will add the evidence of another witness, 
 Mr. Filg-ate, the ag^ent for several larg-e estates in the 
 North of Ireland : — 
 
 " Does not the operation of the Landed Estates Court violate 
 the tenant right custom a good deal ? 
 
 " There have been instances of persons having bought in the 
 Landed Estates Court, and having paid a large price for the land 
 and then having considered that they ought to get a certain per- 
 centage for their money, and upon that serving the tenants with 
 notice to quit. 
 
 " What was the result in most cases ; did the tenant pay the 
 rent demanded, or did he abandon the farm ? 
 
 " In one case, which I have particularly in my mind, the tenants 
 offered to pay something between what they were paying and what 
 the purchaser wished that they should pay. It was ultimately bo 
 arranged."* 
 
 To remedy this evil Judge Long-field wishes the 
 Landed Estates Court to have the power of gfiving* 
 leases for twenty-one years to tenants, wherever the 
 custom of tenant-rig'ht has existed with the knowledge 
 of the landlord, because he thinks it reasonable, he 
 says, that a stranger should not be put over a tenant 
 without placing- the tenant in as good a position as he 
 was in by the custom of the country with his old land- 
 lord. The expression of this wish gave rise to the fol- 
 lowing questions : — 
 
 " Do you think that such power would have any effect upon the 
 marketable value of estates ? 
 
 " Certainly it would, it would reduce the value of estates that 
 were sold, because it would prevent a certain class of land jobbers 
 
 * Minutes of Evidence, H. L. Q. 1997. 
 
 F 
 
6G 
 
 from buying them with the intention of squeezing the tenants out 
 of the estate ; but any man who wanted to give the tenants the fair 
 privileges which from time immemorial they had had upon such 
 an estate, would willingly pay it. 
 
 " You admit that it would reduce the marketable value of the 
 estate to the landlord ? 
 
 " I think it would deprive an estate of an unfair excess which 
 the present law gives to the marketable value." * 
 
 The difference between the sum which the estate 
 would fetch under lease^ and the sum which it actually 
 fetches without lease represents approximately the 
 value of the tenant-right, or where tenant-rig-ht does 
 not extend, the value g-iven to the estate by the im- 
 provements of the tenants. Upon the sale this value 
 g'oes into the purse of the seller. Popular feeling*^ how- 
 ever^ in Ireland, has been directed ag'ainst the pur- 
 chaserS; who have been branded with the nickname, 
 charg'ed with the traditional opprobrium of a century, 
 of land-jobbers. Judg-e Long-field participates in the 
 feeling". But this justice is not even-handed. With- 
 out a doubt, so far as the purchasers have attempted 
 to screw up the rents of their newly purchased estates, 
 they have been wanting in humanity ; but the indig*- 
 nation which has been directed ag'ainst them has 
 diverted attention from the truth, that the person 
 who has really wrong-ed the tenant is the seller. The 
 purchaser has only dealt with what he has paid for ', 
 the seller has received what Judge Long-field has called 
 the " unfair excess.'' Had the interest of the tenant 
 
 * Minutes of Evidence. H. C. 1865. Q. 651, 652. 
 
67 
 
 been in any way protected, the purchaser would have 
 given, and the seller would have received less.* 
 
 The period before us is marked in the next place by 
 the increased share which landlords have taken in the 
 improvements made on their estates. The evidence on 
 this point is unanimous, from whatever quarter we 
 summon the witnesses, and however much those wit- 
 nesses may differ in their reasons and their sympathies. 
 In allowing- them to speak in their own words, we 
 must acquiesce in listening" to their reasons as well as 
 to their facts. On the side of the tenants no witness pro- 
 bably better qualified to speak can be summoned than 
 the Rev. W. Keane, the Roman Catholic Bishop of 
 Clo3^ne, who g-ave the following* evidence on the subject 
 before the Committee of 1865. He had then been 
 twenty-six years in Ireland, and was widely acquainted 
 with the Southern counties : — 
 
 " Is it the result of your experience that such improvements as 
 are made in the country are made, as a rule, by the tenant and 
 not by the landlord ? 
 
 " The periods may differ. I am not aware that any improve- 
 ment at all (I never heard of any worth naming) was made by 
 the landlords from 1780 until about 1840, for about 60 years. 
 Since the sale of property in the Encumbered Estates Court, I 
 believe that the landlords to a certain extent have done more in 
 that way than they ever did before ; but, as a rule, it was the 
 tenants who made the improvements and, as a rule, the tenants at 
 this moment do not make the improvements, because they have 
 
 • I have no right to mention names not made public, but I 
 believe some Irish landlords, from a conviction of the justice of 
 the step, have given leases just before a sale of property, and re- 
 ceived, in consequence, less for the property. 
 
 F 2 
 
68 
 
 not the encouragement which they had from 1780, and the reason 
 is that from 1780 they had leases, and hence the saying, ' He 
 holds under an old lease,' was as common in the days of my 
 boyhood as it is to say now, ' they have no leases at all.' They 
 had leases then and the land was improved. After emancipation, 
 the leases ceased to be a rule and tenancy at will stepped in, and 
 that is what now has thoroughly checked the progress of im- 
 provement." * 
 
 Mr. W. Steuart Trench^ who as the ag-ent for several 
 lar^e estates^ has peculiar means of obtaining' informa- 
 tion^ g-ave evidence before the Committee of the House 
 of Lords in 1867, with sympathies as little concealed 
 as those of the last witness^ but on the side of the 
 landlords : — 
 
 " There is no more frequent assertion made than that the land- 
 lords of Ireland do nothing, and that the tenants do all, build^ 
 drain, and make every improvement which is made on the soil of 
 Ireland. It is impossible to conceive a more utterly false asser- 
 tion. I by no means desire to deprive the tenant farmers of 
 Ireland of any credit to which they^are entitled. My experience 
 is considerable, and I will do them the justice to say, that except 
 where misled by agitators, I have generally found them reasonable, 
 upright, and fair ; and where able, most willing to join their land- 
 lord in effecting permanent improvements. It becomes my duty, 
 as head manager over four estates situated in four different 
 counties in Ireland, to be responsible not merely for the collection 
 of the rents, but for the judicious expenditure on the improvements 
 carried on upon those estates. Some of them, from various 
 causes, were in a very bad condition, when first entrusted to my 
 charge ; whereupon I usually reported to the landlord the steps 
 I would recommend to be taken, and these having been approved 
 of by him, a large but steadily regulated expenditure in improve- 
 
 * Minutes of Evidence, H. C. Q. 3344. 
 
69 
 
 ments has been the result. I will take the liberty of giving a few- 
 figures for the information of the Committee." 
 
 Tliese are the figures, put in a tabular form. The 
 first two estates were situated in the Midland Counties ; 
 the third was in the North, and the fourth was in the 
 South of Ireland. 
 
 Rental. 
 
 Number of 
 years over 
 which ex- 
 penditure 
 was spread. 
 
 Land Improve- 
 ment, drain- 
 age, building, 
 repairs of 
 tenants' houses. 
 
 Compensation 
 for surrender 
 of tenements. 
 
 Emigration. 
 
 Sundiy 
 Improve- 
 ments. 
 
 1. 
 
 £15,000 
 
 10 
 
 £20,867 
 
 £3,362 
 
 £589 
 
 ^1,977 
 
 2. 
 
 £8,000 
 
 5 
 
 £5,385 
 
 £225 
 
 ^eii 
 
 £961 
 
 3. 
 
 £20,000 
 
 16 
 
 £33,984 
 
 £2,831 
 
 £7,988 
 
 £4,178 
 
 4. 
 
 £11,000 17 
 
 £22,222 
 
 ^3,948 
 
 £17,059 
 
 £11,129 
 
 Mr. Trench then continued : — 
 
 " It must be admitted that these estates had been much 
 neglected previous to the improvements vsrhich within the last 
 seventeen years have been undertaken by the proprietors ; but 
 Ireland has much changed of late, and few proprietors now forget 
 that property has its duties as well as its rights. Evictions on 
 these estates have been very few and very rare. The most liberal 
 compensation has been given to outgoing tenants who became 
 bankrupt and could not pay their rents, even for fancied improve- 
 ments, where almost none had been really effected, whilst the 
 large sum expended on emigration was given almost exclusively 
 to those who had taken refuge in the poorhouses in the years 
 1851 and 1852 ; their holdings being so small as to be wholly 
 unable to support them without the potato, which had then failed 
 as a national food. A large amount of the expenditure on build- 
 
70 
 
 inga was given in aid of repairs, the tenant frequently under- 
 taking to do all the manual and horse labour, the landlord 
 giving slates and timber for new roofs, windows, floors, and doors. 
 I have found it far more economical to turn bad houses into good 
 ones, by slated roofs and other improvements, than to build anew. 
 Whenever tenants have improved to any considerable extent, 
 leases varying from twenty-one to thirty years, and sometimes 
 with the life of the lessee included, have in many cases been 
 granted. It appears to me that one of the chief reasons why 
 Irish landlords do not improve their estates still more is the 
 difficulty of obtaining competent persons to secure that good 
 value should be obtained for their expenditure." 
 
 Another witness, Mr. C. W. Hamilton, an agent 
 who has the manag^ement of estates to the extent of 
 about fifty-six thousand acres in Meath, West Meath, 
 and Kildare, described it as the " g-reatest calumny 
 possible" upon the landlords to say that they do not 
 make improvements. He continued : — 
 
 ** Upon five estates which I manage, since 1847 we have spent 
 on building and different improvements by the landlords, 3^28,749. 
 There has not been more laid out, because those estates have been 
 long under the management of my father and my grandfather 
 before myself, and I wish to point out the mode in which money 
 is advanced, because although in many cases the houses have been 
 built from bottom to top by the landlord, and some increase of 6 
 per cent, charged upon the outlay, yet the prevailing custom, and 
 the custom upon which I have always acted in preference to any 
 other is, when a tenant wishes to make any improvement, to say 
 to him : * If you will build good walls, which you can do very 
 cheaply by drawing the materials yourself, and getting the work 
 properly executed, I will give you the timber and slates,* which is 
 what would take money out of the tenant's pocket. That has 
 been done invariably, and no additional rent has been charged for 
 ihat, it being a co-operative work between landlord and tenant." 
 
71 
 
 To these instances he added others from his own 
 observation. On one estate in the county of Wicklow 
 the annual cost of building* farm-houses for tenants 
 had been, he said, £7000 a year. On the Duke of 
 Leinster's estate during* the preceding* six years the 
 expenditure on building's had been £17,503. Then, 
 passing from these large proprietors, he added : — 
 
 "I think that there are numbers of small proprietors who 
 assist in building houses without the actual expenditure of 
 money, though quite in the same way as if the money was taken, 
 out of their pockets. Tor instance, in the case of one proprietor, 
 a lease fell out lately, and three tenants were anxious to get 
 portions of it, of forty or fifty acres each. The landlord said : 
 * It is not convenient for me to spend the money, but I will give 
 it to you for your own life, or thirty-one years, provided you 
 expend each of you £300 on building a house.' Those houses 
 are completed now ; the agreement is a perfectly satisfactory one 
 to both landlord and tenant ; and I believe that the money, 
 though it came out of the tenant's pocket, may be considered to 
 have been actually the landlord's money, because he has given 
 compensation for thirty-one years in the shape of reduced rent. 
 There are nuraberlesss instances of that kind all over the 
 country."* 
 
 One more witness will suffice. Mr. Kincaid gave 
 evidence well worth attention, both because it does not 
 display, like the evidence of the former witnesses, the 
 temper of a partizan, and because it describes an 
 arrangement which is gaining ground in Ireland : — 
 
 " Do you not think that it would be better that the landlord 
 should make the improvements for the tenants ? 
 
 "No ; my opinion is that it should be done between them. I have 
 
 * Minutes of Evidence. H. L. 1867. Q. 2206, 2207. 
 
managed estates for many years now, and I have always found 
 mutual co-operation the most effective and the most agreeable mode 
 to both parties. The tenants do not take sufficient care of the im- 
 provements when they have not a share in them. I always find 
 that in order to induce the tenants to take proper care of fences 
 or drainage, or farm buildings, or anything else, it is essential 
 that they should have a personal interest in them themselves." 
 
 He said^ the principle of co-operation between land- 
 lord and tenant had^ he thought^ been extensively 
 applied in Ireland. And to the question whether this 
 principle had been applied to small estates as well as 
 to larg-e estates^ he answered — 
 
 ** Grenerally speaking, I think it would apply to the estates of 
 noblemen and gentlemen possessing large property. I could not 
 predicate that it has been generally done on estates of smaller 
 men, of men under £1,000 a year, although it has been done to 
 some extent. I think, since 1846, there have been very few large 
 estates in which there have not been very extensive improvements 
 carried on, under the supervision and directiou, and, perhaps, 
 with the assistance of, the landlord."* 
 
 The course of our argument has led us to notice an 
 incidental result of the Landed Estates Court, before 
 noticing" its chief effects. We must keep in sig*ht 
 what has been already mentioned, that by this time 
 more than thirty millions of property have passed 
 through the Court. This property has been bought 
 in holdings of various sizes^ by persons of different 
 ranks, but chiefly by Irish purchasers. They hold 
 under a Parliamentary title. The great majority of 
 them, we are told by Dr. Hancock^ who from his ac- 
 
 * Minutes of Evidence. H. of L. Q. 1050, &c. 
 
73 
 
 quaintance with the working* of Irish institutions is well 
 entitled to speak, have acted^ as was expected, when it 
 was sought to replace their needy predecessors by 
 wealthy and solvent purchasers, and have been a 
 blessing" to their tenants.* 
 
 Two other Acts of this period deserve attention. One 
 of them, the ^^ Landlord and Tenant Act, I860," 
 declared the relation of landlord and tenant to be 
 founded on contract and not on tenure, and simplified 
 the forms of leases.-f 
 
 The other Act, " The Landed Property {Ireland) 
 Improvement Act," attempted to deal with family set- 
 tlements and compensation to tenants. 
 
 The difficulties imposed by settlements, which had 
 been complained of one hundred and twenty years before 
 by Madden, were partially removed. Tenants for life 
 under settlements, are empowered to g-rant Ag'ricultural 
 leases for terms not exceeding* twenty-one years; 
 Improvement leases for terms not exceeding* forty- one 
 years ] and Building* leases for terms not exceeding* 
 ninety-nine years: the Improvement and Building* 
 leases requiring the sanction of the chairman of Quar- 
 ter Sessions; while Building* leases for still long*er 
 terms may be granted with the sanction of a Judg*e of 
 the Landed Estates Court. 
 The Improvements contemplated in ag'ricultural leases 
 
 * Two Eeports on the History of the Landlord and Tenant 
 Question in Ireland. By "W. Neilson Hancock, LL.D., 1869. 
 p. 35. These reports are valuable and interesting, and enter into 
 details and contain information which these pages cannot give, 
 t 23 & 2Jt Yict. c. lU. 
 
74 
 
 include Drainage^ the Reclamation of Bo^ land, the 
 making" Farm roads, Irrig-ation, the Protection of land 
 by embankment from Inland Waters, and the erection, 
 enlarg-ement, and repair of Farm houses and other agri- 
 cultural building-s suitable to the holding. 
 
 It is said that the restrictions of the Act have inter- 
 fered with its operation. 
 
 The provisions relating to compensation to tenants 
 are in substance these. A landlord, notwithstanding 
 any settlement, is allowed to come to an agreement 
 with his tenant for the execution by the tenant of any 
 of the improvements above enumerated. In the absence 
 of an agreement, the tenant may serve on the landlord 
 or his agent, a notice stating the particulars of the im- 
 provements he intends to make, the proposed manner 
 of effecting them, the estimated expense, a description 
 of the land to be charged for them, the time for com- 
 mencement, which is to be not less than three months 
 from the service of the notice, and the time for comple- 
 tion, which is not to be more than two years. The 
 owner, or his agent may then give a counter notice 
 within three months of his disapproval of any of the 
 intended improvements, and the tenant is not at liberty 
 to commence the work disapproved of. Upon the com- 
 pletion of the improvements, or if evicted, upon his 
 eviction, the tenant is to lodge with the Clerk of the 
 Peace a statement of the expenditure incurred not ex- 
 ceeding the amount in the notice of improvement ; and 
 the Clerk of the Peace is to serve on the landlord, or 
 his agent, a notice of the statement, so as to give him 
 
75 
 
 the opportunity of coming" in and being heard; and after 
 due hearing" in the manner provided by the Act, the 
 chairman of Quarter Sessions may charge the hinds 
 with an annuity of £7. 2s per cent, for the improve- 
 ments allowed for twenty-five years.* 
 
 This part of the Act has remained a dead letter ; 
 chiefly^ it was said in the evidence before the Committee 
 of the House of Commons appointed to inquire into 
 the subject in 1865, for two reasons : — first, because the 
 compensation is inadequate ; and secondly, because its 
 form is inconvenient, a lump sum, and not an annuity 
 being- required by tenants. 
 
 About two years before these Acts were passed, a 
 case came before the Court of Chancery in Ireland, 
 which excited great interest, and the full importance of 
 which we shall best appreciate after having- examined 
 the facts, and listened to the Judges who decided it. 
 
 In 1849 the Koman Catholic priest of a parish in 
 Galwa}^, Dr. OTay, at the sug-gestion of the landlord, 
 Mr. Burke, made a proposal to take a farm in the parish 
 of about thirty Irish acres, at a rate of £1. 55 per acre, 
 for a lease of three lives and thirty-one years after, 
 with an allowance towards putting* the premises in 
 repair. Dr. OTay entered while the negotiations were 
 still pending-, and Mr. Burke finding- he had not power 
 under his settlement to make the lease proposed, 
 offered, in a letter of March 26, 1849, if Dr. O'Fay 
 chose to take the farm in the usual way, to allow 
 
 • 23 and 24 Vic. c. 153. 
 
76' 
 
 £•20 towards the cottage, and a lease for life. Dr. 
 OTay g-ave no written answer to this letter ; he con- 
 tinued to occup}^, P^yii^g" t^^6 rent at which he had en- 
 tered, apparently a little less than £1. 5s an acre ; he 
 neither asked nor received the £20 ', he expended about 
 £G0 on permanent improvements, and there was a 
 friendly feeling* between him and his landlord. On 
 Burke's death, in 1854, Dr. O'Fay applied to his son 
 who succeeded him, for a lease for three lives and 
 thirty-one years, and was answered by the ag-ent, that 
 the younger Burke would not make any lease on his 
 property. Burke at this time joined his regiment in the 
 Crimea, and after his departure, the agent wrote to 
 Dr. O'Fa}^, sa3dng', that he was serving, notices by the 
 instructions of Burke on all the tenants from ^^ear to 
 year, preparatory to raising their rents on account of 
 the enhanced value of land, and of all farm produce ^ 
 but that he would not serve him with a notice without 
 first wTiting to ask him to send a proposal for increased 
 rent. Dr. OTay replied that he was not a tenant from 
 year to 3^ear, but held under the letter of March 1849. 
 He added, " I leave m}^ case in your hands at pre- 
 ^^ sent 5 there is no need for sending in a further pro- 
 " posal, particularly^ as a lease will not be granted on 
 " any part of the proper ty.^^ On receiving this letter 
 the agent forbore to send the notice, and did not raise 
 the rent. Burke, on the hearing of the case stated 
 that he did not know of the letter of 1849, and had 
 not authorized this conduct of his agent. Dr. OTay 
 now spent above £500 upon improvements and the 
 
77 
 
 erection of buildings^ ^^ under a hond^fide expectation/' 
 as one of the Judges said," reasonably entertained that 
 " the -possession would not be disturbed/' And the 
 evidence proved that Burke on his return saw the ex- 
 penditure which was being* incurred. An accident 
 broug-ht on a dispute. Burke's own farm adjoined 
 that of Dr. OTay ; and "an unruly ram'' belong'ing' 
 to Dr. O'Fay g-ot over the boundary between 
 the two farms, and caused the litigation. Burke 
 broug'ht an action of ejectment againf_t Dr. OTay, and 
 obtained judg-ment, subject to an application to the 
 Court of Chancery to compel Burke to fulfil his father's 
 promise of a lease. The Master of the Kolls, before 
 whom the case first came, refused the application of Dr. 
 O'Fay. As a matter of law, he held him to be a ten- 
 ant from year to year ; and the case to be g-overned by 
 the rule of law that a tenant from year to year who 
 makes permanent improvements without any expecta- 
 tion held out by his landlord, does not thereby raise an 
 equity as ag-ainst the landlord, though the landlord 
 may have looked on and not given any warning to the 
 tenant. 
 
 He concluded his judgment in these words : — 
 
 " Even if the Eev. Dr. O'Fay had no claim, except as tenant 
 from year to year, I have no hesitation in stating that, although 
 in point of law, on the authorities I have referred to, and particu- 
 larly the case of Pilling v. Armitage, the petitioner's suit could not 
 be sustained, yet nothing can be more repugnant to the principles 
 of natural justice than that a landlord should look on at a great 
 expenditure carried on by a tenant from year to year, without 
 warning the tenant of his intention to put him out of possession. 
 
78 
 
 The defendant's offer to allow Dr. O'Fay to remove the buildings 
 was a mockery. I think it probable that the case will be relied 
 on in the next Session of Parliament as affording an argument in 
 favour of a Tenant's Compensation Bill for Ireland ; and " if this 
 was not an exceptional case, it would, I have no doubt, lead to 
 legislation on the subject. It is however due to the landlords of 
 Ireland to state that, so far as I can form an opinion from the 
 cases which have come before me in this Court, there is rarely a 
 case of such oppression and injustice as the present. 
 
 " I have no jurisdiction to administer equity in the natural sense 
 of that term, or I should have no difficulty whatever in making a 
 decree against the defendant. I am bound to administer an artificial 
 system, established by the decisions of Lord Eldon and Sir William 
 Grant, and being so bound, I regret much that I must administer 
 injustice in this case, and dismiss the petition ; but I shall dismiss 
 it without costs. I should be very glad, for the sake of justice, 
 that my decision should be reversed by the Court of Appeal.'* 
 
 The Court of Appeal affirmed the judgment. The 
 Judg-es^ looking- at the rent he actually paid^ and his 
 not having' received the £20^ considered Dr. OTay to 
 be a tenant from year to year, occupying- not upon the 
 terms of his own proposal or of the letter of March 
 1849; but upon the terms upon which he had entered 
 pending' the neg-otiation. 
 
 With regard to Burke's cognizance of Dr. OTay^s 
 expenditure, one of the Judges said forcibly that he 
 could not draw from the evidence the conclusion of 
 fact that Burke knew of Dr. OTay's expenditure, much 
 less acquiesced in it, with the knowledge of his claim 
 to a lease under the letter of March 1849. The 
 Judges, therefore, held the case to fall under the rule 
 of law laid down by the Master of the Rolls. They 
 
I* 
 
 9 
 
 sbowed their sense of its g-eneral merits, by replying 
 to the application made on behalf of the defendant for 
 costs, that the landlord could pay himself out of the 
 improvements he was getting* possession of.* 
 
 There is one unsuccessful effort at legislation in this 
 period which must not be omitted. In 1852, the 
 present Sir John Napier, then Attorney-General for 
 Ireland, in Lord Derby's government, brought in a 
 Tenants' Improvement Bill, with a clause for retro- 
 spective compensation. t This Bill forms an era in 
 the history of the subject, for it has removed the ques- 
 tion of retrospective compensation from being a party 
 question, and has handed it over entirely to equity and 
 morality. 
 
 Such are the leading facts of Irish tenure. Let us 
 now place them, as was proposed, by the side of the 
 principles of English law, and the judicial decisions 
 of our Courts on cases most nearly parallel, and mark 
 the points of resemblance and of difference. There 
 can, I think, be no doubt that the present tenure of 
 Ireland, tried by English law, is an anomalous tenure. 
 A tenancy from year to year, with an understanding 
 that the tenant is to do permanent improvements, and 
 without a correlative custom of the country for his 
 protection, is happily not the tenancy from year to 
 year known to English experience. Our experience 
 shows us, on the one hand, limited agricultural im- 
 
 * Irish Ch. E. YIII. 225, 511. 
 t Parliamentary Papers, 1852 — 53. 7. 
 
80 
 
 provements made b}^ tenants and protected b}' customs 
 of the country ; and^ on the other hand, particular 
 eases where building's erected or improvements made 
 by tenants without leases^ either under some supposed 
 special barg-ain which is found when a dispute arises 
 not to exist, or in reliance upon the honour of their 
 landlords^ or in a careless confidence in a continuance 
 of the existing" state of thing's, have become lost to the 
 tenants upon a chang-e of the ownership of the land ; 
 and in any of these cases if the tenants have re- 
 ceived compensation, the compensation has been g-iven 
 for the honour of the landlord. Instances of such 
 loss to the tenants have come within the experience 
 of most conveyancers in larg-e practice^ but they are 
 exceptional and not numerous. The case before us lies 
 between the two extremes known to Eng-lish experi- 
 encC; improvements being- made without leases, but at 
 the same time under circumstances justifying- or in- 
 ducing confidence in the continuance of the tenancy. 
 The relations of the landlords and tenants of Ireland 
 are further complicated by the fact that improve- 
 ments are^ to an increasing deg-ree^ made jointly; 
 and still further complicated throug'hout nearly all 
 Ulster^ and in many parts beyond Ulster, by dealing's 
 in which both landlord and tenant contemplate a con- 
 tinuing- thoug-h undefined interest in the tenant. 
 That these complications have left tenancy from 
 year to year in the same position in which they found 
 it, is a supposition at variance with the spirit of 
 Eng"lish law. But what exact relations have been 
 
81 
 
 created, or ate being; created by these means between 
 the parties, it is not easy to say positively, more 
 especially as one formula will not embrace all the re- 
 lations. The g-eneral result may, I think, be thus stated. 
 Irish tenure without lease, must be considered to be a 
 tenure from year to year, with different equities 
 annexed— equities in some instances, capable of being" 
 enforced in a Court of Chancer}', so as to limit either 
 the power of eviction, or the power of raising- rents, or 
 both ; or, at any rate, so as to ensure the tenant com- 
 pensation on removal ; and equities, in other instances, 
 tending in the directions just mentioned, but only 
 moral equities. The evidence in each instance must 
 decide to which categ'ory the instance belong-s. 
 
 Let us go step by step, beginning- with the instances 
 where the equities are the weakest. In a country 
 where it is the practice for tenants to make the improve- 
 ments, a landlord allowing a tenant to enter without a 
 lease upon the land, and to make the improvements 
 necessary for the enjoyment of the land, cannot be 
 supposed to have held out an expectation, nor can the 
 tenant be supposed to have entered with the expectation, 
 that the landlord should re-enter immediately and ap- 
 propriate the labour of the tenant. Some expectation 
 the landlord has held out, and upon the faith of it the 
 tenant has entered. What is it? The expectation differs 
 in different cases. Like many other agreements not re- 
 duced to writing, but resting upon words and acts, the 
 contract between the parties has been left vague, and 
 
 a 
 
8S 
 
 has now to be determined by law. We have no cases 
 exactly parallel to g-uide us^ because cases arise out of 
 the facts of society^ and the facts of English society 
 differ radically from the facts of Irish society. We 
 must look then at the nearest Eng'lish cases^ where 
 tenants without leases have incurred expenditure under 
 some expectation, and, after seeing how Eng'lish law 
 has dealt with them, consider how far the conclusions 
 are modified by the difference between Eng'lish society 
 and Irish society. We shall find no better exposition 
 of the law than that g'iven by Lord Kingsdown in 
 summing' up the results of these cases : — 
 
 " If a man, under a verbal agreement witli a landlord for 
 a certain interest in land, or, wliat amounts ^to the same thing, 
 under an expectation, created or encouraged by the landlord, that 
 he shall have a certain interest, takes possession of such land, with 
 the consent of the landlord, and upon the faith of such promise or 
 expectation, with the knowledge of the landlord, and without objec- 
 tion by him, lays out money upon the land, a court of equity will 
 compel the landlord to give effect to such promise or expectation. 
 This was the principle of the decision in Gregory v. Mighell, 18 
 Ves. 328, and, as I conceive, is open to no doubt. 
 
 " If, at the hearing of the cause, there appears to be such 
 uncertainty as to the particular terms of the contract as might 
 prevent a court of equity from giving relief if the contract had been 
 in writing, but there had been no expenditure, a court of equity 
 will nevertheless, on the case which is above stated, interfere in 
 order to prevent fraud ; though there has been a difference 
 of opinion amongst great judges as to the nature of the relief to bo 
 granted. Lord Thurlow seems to have thought that the Court 
 would ascertain the terms by reference to the Master, and if they 
 could not be ascertained, would itself fix reasonable terms. Lord 
 Alvauley and Lord Eedesdale, and perhaps Lord Eldon, thought 
 
83 
 
 this was going too far ; but I do not understand any doubt to have 
 been entertained by any of them that, either in the form of a 
 specific interest in the land, or in the shape of conpensation for 
 the expenditure, a court of equity would give relief, and protect 
 in the meantime the possession of the tenant, 
 
 ** If, on the other hand, a tenant being in possession of land, and 
 knowing the nature and extent of his interest, lays out money 
 upon it in the hope or expectation of an extended term, or an 
 allowance for expenditure, then if such hope or expenditure has 
 not been created or encouraged by the landlord, the tenant has no 
 claim which any court of law or equity can enforce. This was the 
 principle of the decision in Pilling v. Armitage, 12 Yes. 78, and, 
 like the decision in Gregory v. Mighell, seems founded on plain 
 rules of reason and justice."* 
 
 If we arrano-e the cases of these Irish tenants under 
 
 o 
 
 the three classes of this passag^e, very few will be placed 
 in the first class, for that class is intended to comprise 
 tenants who have entered without lease upon the 
 promise of a specific interest, while the peculiarity of 
 Irish tenancy without lease is that no definite interest 
 is held out in expectation. More cases will belong- to 
 the third class, in which are placed tenants who, 
 knowing" the extent of their interest, have incurred 
 expenditure upon hopes not created or encouraged by 
 their landlords, and who have no claim in law or 
 equit3% Into this class came the case of Dr. O'Fay. 
 But most Irish tenants will, I think, be found to 
 belong* to the second class, which comprises the cases 
 of uncertainty as to the particular terms of the contract 
 30upled with expenditure, with regard to which Lord 
 Kingsdown, folio wino^ the authority of the great 
 
 * Dyson r. Ramsden, L.E. 1. H. L. 129. 
 
 G 2 
 
84 
 
 j adobes whom he mentioned, and to whom he must be, 
 added as second to none, says that there is no doubt 
 that a Court of Equity will grant relief either, for this 
 is the only point where these judg'es differ, in the form, 
 of a specific interest in the land or in the shape of 
 compensation ', and, — here all these judges agree,— in- 
 the meantime protect the possession of the tenant. We 
 may pass by the first class without further notice. 
 Jhe real question is, Do these Irish tenancies belong* 
 in general to the second or the third of these classes ? 
 To answer the question, w^e must examine carefully the 
 case to which Lord Kinofsdown has referred as describ-; 
 ing" the third class, because it forced, as we have seen, 
 the Irish Judg-es, to deliver a judgment, from the re- 
 sults of which they shrank, and because the transaction 
 detailed in it resembles actual transactions in Ireland, 
 excepting- the difference of system as to improvements 
 in Eng-land and Ireland. 
 
 The plaintiff, a tenant from year to year, filed a bill 
 to obtain a lease of some premises from the defendant, 
 on the ground of an agreement which he alleg-ed 
 to have been made in 1790, but which was denied by 
 the defendant, that in consideration of his improving* 
 and building- a mill on the premises he should not be 
 disturbed during- the lifetime of the defendant. 
 
 The plaintiff's expenditure was not disputed , but he 
 failed to prove the alleged agreement based upon it. 
 In giving- judgment ag-ainst him, Sir W. Grant, after 
 pointing out this failure of proof, entered upon the 
 wider question involved; and his remarks have 
 
35 
 
 governed the matter ever since. This is my excuse 
 for setting" them out at some length. He said :^- 
 
 " Can the plaintiffs then claim upon the general equity, having 
 laid out a great deal of money in improving the mills, with the 
 knowledge of the defendant, standing by seeing them go on, not 
 objecting, or in any way intefering to prevent them ? AVhatever 
 equity might arise upon that footing would be of a different sort 
 from that which they could claim upon a specific engagement for 
 a lease of a definite duration. As to that, if you disconnect the 
 improvements from any specific engagement, upon the faith of 
 which they were made, it is rery difiicult to give the plaintiff the 
 benefit of this improvement to whatever degree they may have ame- 
 liorated the estate. I would go every possible length to aid 
 parties in obtaining reimbursement of expenditure upon another's 
 property, of the benefit of which they have been deprived by the 
 exercise of his legal right, determining their lease from year to 
 year. "Whatever his own breast may suggest to him, the question 
 here is, what legal and equitable redress can be obtained. 
 
 "I do not know any case in which a lessee, either of a term or 
 from year to year, making any improvement upon the estate in 
 his possession, though with the complete knowledge of the land- 
 lord, has been held as entitled against that landlord to have his 
 lease prolonged until he shall obtain reimbursement for the im- 
 provements he has made ; for he has a title, of which he knows 
 the duration. He is not under a mistake with regard to the 
 nature of his title. He may, perhaps, be guilty of great im- 
 prudence if the expectation, that his lease will be renewed, or his 
 possession from year to year will continue, prove unfounded. 
 But, because that expectation is disappointed, can I say he has 
 acquired a right to a prolongation of his lease, or to a lease for a 
 certain period ? What is the information the landlord ought to 
 be expected to give in such a case ? What information can he 
 give to a tenant from year to year other than he possesses ; viz., 
 that he is a tenant .from year to year, making improvements, and 
 
86 
 
 laying out money upon an estate in which he has no permanent 
 interest. 
 
 " I am now supposing there was no promise by the defendant 
 to quiet the plaintiffs in the possession for his life ; upon such 
 promise, if established, they must succeed ; but, treating it merely 
 as the case of improvements, made in his view, that information 
 would not have conveyed to them anything they did not possess. 
 
 " This case is the case of a tenant from year to year, making 
 improvement at his own discretion, upon the hope, arising from 
 the habit of his landlord, that it would be worth his while to take 
 the chance, having no apprehension of being disturbed. These 
 parties, independent of any promise, rested so much upon the 
 faith, that they should not be disturbed in the enjoyment, as their 
 ancestors had not been for many years, that they thought them- 
 Belves as safe as if they had a lease. But can I convert that hope 
 into an actual engagement by the landlord, binding him down to 
 permit them to continue in possession, not for a definite period, 
 but until they shall be reimbursed. See how far that would 
 extend. The case hardly occurs of a good tenant, especially where 
 tenants are seldom turned out, who does not make some improve- 
 ment. Can a Court of Equity say such a tenant is never to be 
 removed, until it has been settled in ecyiity how much has been 
 laid out under the expectation that he should not be turned out, 
 and the landlord would not exercise his legal right until reim- 
 bursement ? This is a hard case upon the plaintiffs, if they lose 
 all their money ; but to give redress in a particular case likely to 
 occur rarely, am I to lay down a principle, that would shake 
 the security of property in almost all its ramifications and the 
 dealings of men with each other ? 'For that purpose, T must say, 
 that the true measure of justice is that a landlord should never 
 turn out a tenant, if improvements have been made with the know- 
 ledge of the landlord, until the tenant shall be completely reim- 
 bursed." * 
 
 * Pilling V, Armitage. 12 Ves., 78. 
 
87 
 
 To put it shortly. A tenant from 3 ear to year does 
 not by the mere fact of making* improvements, thoug'h 
 with the knowledge of his hmdlord, acquire a right 
 either for a prolongation of his holding- or for com- 
 pensation. Before we are in a position to clear up 
 " the uncertainty as to the particular terms of the con- 
 tract'' between the two parties, we must have some 
 evidence that there is a contract. Occupation coupled 
 with improvements do not of themselves imply an 
 agreement. 
 
 In arriving at these decisions the Judges of England 
 have set out from a system in which landlords make 
 improvements, and the improvement of tenants are 
 exceptional. This is constantly to be observed in their 
 arguments. On the occasion when Lord Kingsdown 
 delivered the judgment already quoted, in a case where 
 a tenant from year to year had built a house, and then 
 claimed a lease upon an alleged tenant-right of the 
 estate. Lord Cranworth and Lord Wensleydale spoke of 
 the " folly" exhibited by tenants from 3''ear to year in 
 building. Sir W. Grant, as we have seen, feared to 
 " shake the security of property in almost all its rami- 
 fications,'' by attempting ^^ to give redress in a parti- 
 cular case likel}^ to occur rarely.'' If, when reading the 
 words of these Judges, we call to mind the conduct of 
 Dr. O'Fay, or of Mr. Clarke of Eathcore, we shall see 
 that the Judges are reasoning from their experience of 
 one set of facts, and the Irish tenants are acting from 
 their experience of another set of facts. AVhat is rare 
 to Sir W. Grant appears to be the natural conduct to 
 
88 
 
 these tenants. It is precisely this difference which 
 .makes the Irish Master of the EoUs speak of his being* 
 bound to administer *^ an artificial system/' In Eng*- 
 land the sj^stem has followed from their roots the rami- 
 fications of property. In Ireland it comes upon 
 ramifications issuing* from another stem. In Ireland 
 to apply the term ^^ folly'' to these tenants would be 
 mere mockery. No Judge would use the word of a 
 practice sanctioned by a standing* of two hundred 
 years, and adopted for the convenience of the landlord 
 no less than for the convenience of the tenant. Hence 
 in applying- these decisions to Ireland, we must ask 
 • — How far are they modified by the difference between 
 the English and Irish systems ? English law would 
 cease to be English law if so remarkable a difference in 
 the circumstances did not produce any modification ; 
 but in the absence of any decision on the exact point, I 
 can speak only wdth hesitation. This difference in the 
 circumstances must, I think, produce at the very lowest, 
 two legal results ; first, less evidence must be necessary 
 on the part of the tenant of the landlord's knowledge 
 of the improvements, for his knowledge is a step though 
 not enough alone, even if the difference does not shift 
 the burden of proof, and raise a presumption of the 
 landlord's knowledge of improvements suitable to the 
 holding" ; and, secondly, as the system is intended for 
 the benefit of the landlord as much as for the benefit 
 of the tenant, less evidence than in England must be 
 necessary to support a promise on the part of the land- 
 lord of a continued tenanc}^. 
 
89 
 
 So far we have been dealing* with the cases in which 
 the equity is the weakest, and dealing* with them in 
 the only way possible in these pag-es, as a class. Let 
 us advance a step, and take the class of cases daily, as 
 the evidence shows, becoming- more numerous and more 
 distinct, in which improvements are made by the land- 
 lord and the tenant jointly, and place them beside the 
 law, as explained by Sir W. Grant in another part of 
 the case already quoted. 
 
 The defendant, in that case, while denying* the agree- 
 ment set up by the plaintiff, asserted that the real 
 agreement was one entered into in 1794, according* to 
 which the defendant was to advance £300 out of £500, 
 at which sum the necessary repairs and improvements 
 had been estimated, to furnish wood at a reasonable 
 price, and stone g-ratis, and the plaintiff was to pay in- 
 terest at £5 per cent. The plaintiff^ however, did not 
 Tely on this agreement. 
 
 Sir W. Grant said : — 
 
 *' The only possible ground for redress is upon the footing of 
 the agreement of 1794) ; but that is inconsistent with the shape of 
 the Bill. If a landlord enters into an arrangement with a tenant 
 relative to improvements, and so completely sanctions them, as 
 iiimself to agree to advance part of the money, implying that 
 another part is to be in advance by the tenant, I doubt whether 
 that does not fasten an equity upon the landlord, precluding him, 
 when these improvements are made under his authority, from 
 paying there is an end to the lease. Such an arrangement, though 
 without a specific arrangement would imply one ; as it would be 
 BO contrary to good faith to encourage a tenant in so positive and 
 direct a manner to proceed in particular improvements arid then 
 deny him all benefit, that I think equity would interfere ; and hold 
 
90 
 
 it an implied term, that the tenant should have the fair benefits 
 from the improvements, thus made by the concurrence of his land- 
 lord." 
 
 Our next step leads us to Ulster Tenant-Rig-ht. 
 Some landlords, we have seen, deal openly with tenant- 
 rig'lit, while others shut their eyes to its existence ; 
 hut accept its benefits. As a matter of law^ there can 
 can be little doubt that the landlord who accepts the 
 benefits with closed eyes is as fully affected with 
 notice of the transaction as the landlord who deals 
 openl3^ Let us recapitulate the leading* features of 
 the transaction. It is done with the knovvledg*e, and 
 sometimes at the office, of the ag*ent 3 the landlord 
 accepts the incoming* tenant upon the sugg-estion, sub- 
 ject to different limitations in different estates, of the 
 outg-oing* tenant; he allows the incoming* tenant to 
 pay money as a consideration for the tenancy under 
 him, sometimes actually reg-ulating* the money paid ; 
 and when his rent is in arrear, he takes the first share 
 of the money. Most landlords who act in this manner 
 intend to make themselves parties to the transaction ; 
 but whatever they intend, where all or most of these 
 acts are combined, they would be held in law parties. 
 What, then, is the leg-al import of these acts ? With- 
 out doubt the landlord holds out to the incoming- 
 tenant an expectation of an interest of some duration, 
 but what the expectation is must depend on the par- 
 ticular circumstances of each case, and vary on each 
 estate. To take an instance. Suppose an estate of 
 which the tenants are given to understand that they. 
 
91 
 
 will not be evicted, except for the breach of some well- 
 known rules of the estate, and that their rent will not 
 be raised or even revised for twenty 3'ears from a given 
 date;* and suppose a new tenant admitted to replace 
 an old tenant under the tenant-right, five years after 
 this given date ; these circumstances would probably 
 fasten an equity on the landlord, preventing him from 
 evicting the tenant, except in the cases provided for^ 
 or raising his rent during the remaining fifteen 3'ears. 
 Other instances may be suggested, where the tenant 
 might not succeed in resisting eviction, but would pro- 
 bably be held entitled to compensation for the money 
 he had been allowed to spend. Or, again, in other 
 cases, where the tenant failed in preventing altogether 
 an increase of rent, the money paid by him would 
 probably be held a charge upon the land, and a Court 
 of Equity would restrain such an increase of rent as 
 would encroach on the value of the charge. 
 
 One step more. It is obvious that the equity in 
 favour of the tenant becomes still strong-er in cases 
 where tenant-right and joint improvements meet. 
 
 The question will rise to the lips of every one. How 
 comes it, if these equities exist, that the tenants have 
 not availed themselves of them, and why need we any 
 further remedies ? The question admits of a distinct 
 answer. These equities are enforceable only in the 
 Court of Chancery, and the Court of Chancery is too 
 far removed froln the home of the small holder, and too 
 expensive to help him. Whatever other legislation is 
 
 * See Minutes of Evidence. H. L. 1867. Q. 881, &c. 
 
02 
 
 needed, our survey of the facts of Irish tenure must 
 convince us that rights and remedies relating* to land 
 ought not to be left to equities, the full values of 
 which have not been judicially determined, but should 
 be defined by positive legislation, and administered by 
 Courts on the spot. As it is, the jurisdiction of the 
 Court on the spot, the Civil Bill Court, is too limited 
 to afford full relief, although as long ago as 1816 
 this Court was invested with authorit}^ in the matter. 
 The Act of that year, already mentioned as giving 
 the Civil Bill Court concurrent jurisdiction with the 
 Superior Courts in ejectment in the case of small 
 tenements, by a clause designed to protect the tenant, 
 entitled him to every defence he might have in law or 
 equity.* This clause was repeated in the Landlord 
 and Tenant Act of 1860, and is now in force.f But 
 the operation of the clause has been much narrower 
 than could at first sight be supposed from the words. 
 The Act of 1816, in giving the Civil Bill Court 
 merely a concurrent jurisdiction with the Superior 
 Courts of law, left the plaintiff) when the tenant 
 whom he sought to evict raised an equitable defence, 
 liberty to remove the case from the Civil Bill Court, 
 where the equitable defence was available, to the Su- 
 perior Courts of law, where the equitable defence was 
 not available. So completely was this the result 
 that an Irish judge, in discussing whether an equit- 
 able defence before him should be admitted, said :— 
 
 * 56 Geo. III. c. 88, s. 9. f S. 9. 
 
^^ There is always this to be considered when we are 
 going" to do a thing of that kind, that you put the 
 unsuccessful part}^ to bring* his ejectment before an- 
 other tribunal, where the leg-al title must prevail, as 
 the Court of Law cannot regard the equitable case 
 of the defendants." Thus in practice, the jurisdic- 
 tion of the Civil Bill Court was limited by the 
 purely legal jurisdiction of the Superior Courts of 
 Law. This result has been somewhat modified by the 
 subsequent legislation, which has rendered equitable 
 defences in ejectment admissible in the Superior Courts 
 of Law ; but substantially it remains as it was, and 
 the test as to whether a tenant can successfully 
 maintain an equitable defence in the Civil Bill Court 
 is practically still, whether he can maintain the de- 
 fence in the Superior Courts of Law. Now, the Supe- 
 rior Courts consider their jurisdiction limited by the 
 nature of their machinery. This may be illustrated 
 by a typical Irish case. In an action of ejectment, the 
 defendant pleaded as an equitable defence an alleged 
 agreement between himself and the plaintiff that in 
 consideration of his paying the plaintiff a debt of £18 
 due from the outgoing tenant, and engaging to expend 
 £150 upon the farm, the plaintiff promised not to dis- 
 turb him so long as he paid his rent regularly, without 
 repaying the £18 and the expenditure. The Court, 
 however, set aside the plea. It disclosed, said Judge 
 Crompton, a case for equity : but it was impossible to 
 settle the action without an account 5 and the Court had 
 no officer, no machinery and no authority to take such 
 
94 
 
 an account.* The practical limitation thus imposed is 
 obvious. The value of tenant-rig'ht based on improve- 
 ments is essentially a matter of account, — account of 
 g-rowing" intricacy, in proportion as improvements are 
 made jointly, — and Courts without officers, machinery, 
 and authority to take an account cannot administer 
 justice. "When we criticise the rough and ready valua- 
 tion conventionally adopted for Ulster tenant-rig'ht, we 
 must not forget that the law does not afford help in 
 valuing" the elements which admit of being- reduced to 
 certaint3^| 
 
 We have thus reviewed the facts of Irish tenure ; we 
 have placed them by the side of the principles of Eng*- 
 lish law, and the judicial decisions most nearly applic- 
 able ; and these are our results. English law has 
 been administered in Ireland without the element of 
 Custom : and English equity is liable to become in Ire- 
 land a merely artificial system, if it neglects to take 
 cognizance of the systematic difference in agricultural 
 management between England and Ireland. But 
 taking" cognizance of that difference, we must be 
 led, I think, to these conclusions — that a g-reat 
 number of the tenants of Ireland have actual rig-hts 
 which are ill secured; that there is between them 
 and their landlords a complicated state of accounts 
 which it is for the interest of both parties to have 
 cleared up, and put on a footing* so distinct as to pre- 
 
 * Cochrane v. Commack, 7 Ir. C. L. E. 10. 
 t I owe the facts of this paragraph to the kindness of Dr. Han- 
 cock. 
 
95 
 
 vent similar complications hereafter ; that the present 
 tenancy from year to year lodges in the hands of land- 
 lords too much power ; and that the present state of 
 the law and the machinery hy which the law is admi- 
 nistered do not suit the conditions of Irish society. 
 These conclusions present a basis for legislation ; but 
 before sketching any legislation^ it will be well to ex- 
 amine w^hat other considerations the facts reviewed 
 suggest. 
 
 In the first place, the great variety of the facts in 
 itself shews the impossibility of applying one common 
 remedy, either by establishing fixity of tenure or by 
 granting- one universal lease, whether for a term of 
 sixty-three or twenty-one years. On what principle 
 are we to make the same gTant to tenants, of whom 
 there are many, who are not improving their holdings 
 even if they are not deteriorating- them, and the ten- 
 ants, who are steadily reclaiming the inhospitable 
 moorlands of Donegal, or to come nearer home, are 
 creeping up the hill sides almost within sight of Dub- 
 lin. On what principle are we to mete out the same 
 measure to the landlord who does everything and to the 
 landlord who spends nothing on his estate, and how 
 can such a remedy meet the cases of improvements 
 jointly made by landlords and tenants ? Lastly, with 
 what justice can we do this thing to proprietors who 
 have purchased within the last twenty-five years 
 property to the value of thirty millions under a Par- 
 liamentary title? 
 
 In the next place, it seems impossible to deny that 
 
9G 
 
 the long' leases from which so much was expected in- 
 the last century, and which were advocated by Dobbs 
 and by Burke, proved a failure. The experiment w^as 
 fairly tried in very many of the leases made after 1777. 
 The original lessees under these leases were not middle- 
 men, but real cultivators who by the subsequent rise 
 of prices were induced to sublet to other cultivators, and 
 these ag-ain to others in a descending series. This is 
 shewn in the history of several estates traced by 
 the Devon Commission.* The truth is, that when the 
 orig-inal lessor and lessee turned their backs upon one 
 another for sixty years, the time of their meeting" ag-ain 
 was so distant that neither had any very strong* per- 
 sonal interest in what would be the state of thino-s 
 at that epoch. Judging* from the past, the best pro- 
 tection for the tenant, best, that is, looking to the ad- 
 vancement of agriculture and the general w^elfare of the 
 communit}', is not to be sought in long agricultural 
 leases, but in providing him with complete security for 
 compensation for his outlay, whatever the length of his 
 lease, and whenever the termination of his tenancy ; and 
 in leaving the length of the tenancy to be settled by 
 the requirements of the agriculture of the district.* 
 
 Again the facts before us shew the risk, it might 
 not be too much to say, the certainty, that every law, 
 good or bad, wise or unwise, affecting the framework 
 
 * e. g. The Caher Estate ; and Lord Palmerston's Estate, 
 t I have seen two forms of leases in actual use in Ireland, drawn 
 on this principle. 
 
97 
 
 of society, will produce effects different from the 
 effects anticipated. 
 
 " Sith every action that hath gone before, 
 Whereof we have record, trial did draw 
 Bias and thwart, not answering the aira. 
 And that unbodied figure of the thought, 
 That gave *t surmised shape.** 
 There is nothing* which more impresses the student 
 of leg-al history^ than the collateral and unexpected 
 results of almost every law, results hicreasing* in im- 
 portance with the importance of the law, and some- 
 times overtopping its direct effects ; and there is no 
 pag-e of legal history more full of striking illustrations 
 than the history of Irish legislation. The tenure of 
 leaseholds for lives renewable for ever was intro- 
 duced by men of wisdom after deliberation, as the 
 best remedy for the evils pressing* in their day, but it 
 ended in producing* great uncertainty of tenure. The 
 long* leases consequent upon the Act of 1777, promoted 
 the subsequent subdivision of land; the Act of 1793, 
 conferring" the franchise on Roman Catholics, an Act 
 of undoubted justice, operated in the same direction, 
 and the Act establishing- the Landed Estates Court, 
 notwithstanding- the advantages attending- it, has, in 
 many instances, worked hardly for tenants. Looking- 
 back, we are able to say how each of these laws was 
 drawn athwart, but the lawgivers looking forward, 
 failed to foresee the causes which have diverted each 
 law, 
 
 " Tortivo and errant from its course of growth/* 
 
 From these failures we may gain experience. The 
 
 H 
 
98 
 
 tenure of leaseholds renewable for ever failed^ mainly 
 because the tenant-landlords imitated the fashion set by 
 their superior absentee landlords, and lived upon the re- 
 venue of their estates without superintending- them. The 
 operation of the Acts of 1777 and of 1793 was affected 
 b}^ the long" war ; and at the time of the establishment 
 of the Landed Estates Court, the legislature did not 
 properly appreciate the conditions of Irish society 
 and the nature of tenants' property. The neglect of 
 their duty by a class, and war, are disturbing* forces 
 which a lawgiver could not foresee ; but the warning- 
 conveyed by the past, that disturbing- forces which 
 Ave cannot now foresee will certainly appear in the 
 future, bids us observe all the more carefully what is 
 within the rang-e of our horizon, the actual conditions of 
 the society for which we are legislating. And a careful 
 observation of the past and present conditions of Irish 
 tenure cannot fliil, I think, to make every one shrink 
 from summary and startling* legislation, and prefer, as 
 regards the past, to give security to every rig-ht which 
 has established itself j and, as reg'ards the future, to 
 enable ever}^ Court having- jurisdiction in the matter, 
 by the aid of ampler powers and more perfect machi- 
 ner}' than heretofore, to protect every form of property 
 which ma}^ grow up under an equity or a custom. 
 
 Turning now from the past to the present, let us 
 observe the conditions of Irish tenure, which may 
 guide or assist us in leg-islation. 
 
 The two most suggestive conditions of Irish tenure, 
 ^t this moment, appear to me to be Ulster Tenant- 
 
99 
 
 Rig-ht; and the increase of the S3'stera of joint im- 
 provements by landlords and tenants. These two 
 conditions have in common that they have not been 
 produced by any law, but have grown up of them- 
 selves. The latter, in brinc^ing* the landlord and 
 tenant into friendly co-operation, has some analog-y to 
 the process by which English agricultural customs 
 have grown up, and as it raises an equity in favour of 
 the tenant, it affords him protection which will become 
 more complete in proportion as the jurisdiction of the 
 Courts is enlarged. One of the dangers of attempting 
 to force upon Ireland a term of lease by statute, is 
 the great risk we run of making the statute the 
 measure of the relation between the parties. In com- 
 pelling a landlord by law to grant a specific lease, we 
 exonerate him from all moral responsibility to do 
 anything but obey the law; we disincline him to 
 contract relations of his own with his tenants; we 
 deprive the country of the advantage which it has 
 already derived from the effect of the public opinion 
 of England upon the landlords of Ireland, to which, 
 in no small degree, must be attributed the expenditure 
 already noticed as now incurred by them ; and we are 
 in danger of stifling a practice which the most com- 
 petent witnesses represent as beneficial, and as gaining 
 ground in Ireland. We can ill afford to squander 
 any of the forces for good, or waste any of the ele- 
 ments promising advance which we possess. Our 
 course is to uphold the practice, at the same time 
 making it clear that the co-operation of the landlord 
 
 H 2 
 
100 
 
 and the tenant creates a legal relationship, under 
 which each has a share which may be accurately 
 determined. 
 
 The other and by far the most sug'g'estive condition 
 of Irish tenure, Ulster Tenant-Eio-ht, is not only 
 of natural g-rowth^ but is the consequence^ as Lord 
 Dufferin has said, of the good relations subsisting 
 between the tenants and the landlords in the North 
 of Ireland ; and it has existed long enough in turn to 
 streno'then those relations throuofhout all Ulster. 
 
 AVhether as effect or cause — probably as an effect 
 first, and afterwards as a cause — it is the system of the 
 part of Ireland where agriculture is at its best. The 
 people of the North, as already mentioned, set great 
 store by it. "It has wound itself,' ' says Mr. Trench, 
 "into the feelings of the people, who consider it just 
 and fair." It is a property valued at tw^enty millions \ 
 and those among the Irish of the North who are join- 
 ing in the agitation respecting the land question are 
 joining in it from the fear that Ulster tenant-right is 
 in danger, and in defence of the property invested. 
 Lastly, it is the object of desire in other parts of 
 Ireland. Ulster tenant-right has this remarkable 
 peculiarity, that it sprang up among the immigrant 
 race, and has been extended to the Celtic race, and 
 been welcomed by them. It is the only acceptable 
 present made by the one race to the other. It is the 
 one institution which the tenants of both races unite 
 
 * Minutes of Evidence. H. C, 1865. Q. 965. 
 
101 
 
 in uplioldin^j. Its origin may be in Londonderry, but 
 it is as hig-bly valued in Donegal as in Londonderry^, 
 and it is desired in Tipperary and Cork. Ulster tenant- 
 right, therefore, comes before us with claims on our 
 attention difficult to overrate. What, then, is the 
 essence of the S3'stem in the eyes of the tenants ? They 
 value it because it affords them protection, and it 
 affords them protection by creating for them a charge 
 upon the land. It does not give fixity of tenure in 
 words, because, however unpopular might be the 
 exercise of the right, the landlord is admitted, under 
 the system, to have the right of removing a tenant 
 upon paj^ment of the tenant-right. But it tends to 
 fixity of tenure, because it makes eviction expensive. 
 And it further oflers some guarantee against an undue 
 increase of rent. The critics of the sj^stem, especially 
 the English critics, appear to me to have attended to 
 the accidents, not to the essential part of the system, 
 and to have fixed their eyes too exclusively on the 
 amount of the charge as diminishing the capital of the 
 tenant, and its origin as conceding' a right of occu- 
 pation. To the tenant the important point is that the 
 charge in his favour exists. The present tenants have 
 either inherited or bought up the charge, and are in- 
 different as to its origin. 
 
 No more instructive illustration of the difference 
 between the points of view of the tenants and their 
 critics can be selected than the following extract from 
 the evidence of Mr. Eussell, the agent for the property 
 of the Marquis of Conyngham in Donegal, given to 
 the Committee of the House of Lords : — 
 
102 
 
 " Do you consider that under Ulster tenant-right a tenant is 
 placed in advantageous circumstances for improving his property ? 
 — They go on improving under that tenant-right ; they consider 
 that the purchasing of that tenant-right gives them, in fact, an 
 interest in the land as good as the proprietors. 
 
 " It gives them fixity of tenure ? — It gives them fixity of 
 tenure. 
 
 "About what is the rate that is paid for tenant-right ; I suppose 
 there is something like a regularity in the tariff, is not there, of 
 the purchase-money that is paid ? — It depends very much upon 
 the locality. Upon the large proprietors* estates a very much 
 larger sum is given than on small proprietors' estates for the 
 tenant-right. On Lord Conyngham's estate, which I manage, 
 it varies from 10 to 20 years' rent. 
 
 " That is, from 10 to 20 years' purchase ? —Yes. 
 
 " Then a man pays nearly the fee simple of the laud, in order 
 to have the privilege of paying the proper rent to his landlord ? 
 Yes. 
 
 " That is the reason I asked you whether, where tenant-right 
 prevails, a tenant was under circumstances that would enable him 
 to improve the land, and do justice to himself and his landlord, 
 and you say you think he is ? — It very often happens that to 
 make up these sums they are obliged to go into debt ; they borrow 
 from whom they can at a high rate of interest. 
 
 " Then the tenant enters upon this business which is every day 
 becoming one requiring more and more science and skill and ap- 
 plication of capital, with his millstone round his neck ? — Yes. 
 
 " Snrely he cannot be in a position to do justice to himself and 
 his landlords ? — Such is the system. 
 
 ** We want to know whether in your judgment it is a good 
 system ? — If it could be got over it would be very desirable, 
 but I do not see how it can ; it has been going on for so many 
 years that a man thinks when he pays so much for the right to 
 hold his landlord's property that he has a right not to be dispos- 
 sessed of it without the privilege of selling it to another. 
 
 " It is a property charged with a rent to be paid every year ; 
 
103 
 
 the consequence is the tenant must be perpetually in difficulties. 
 I do not see how a man is to live who pays the fee simple of the 
 property (for it comes very nearly to that), and has to pay what 
 his landlord expects and considers to be a proper rent for it after- 
 wards? — Unless he has the money accumulated, he is in dif- 
 ficulties all his life ; but in many cases by frugality and industry, 
 he in a few years is enabled to pay off the sum borrowed. 
 
 " Has it not struck the people that that cannot be a good system 
 which secures a man's being in difficulty all his life. — The 
 tenants in Ulster do not appear to think so ; they think it gives 
 them a security, and so anxious are they to possess land that they 
 gladly avail themselves of it."* 
 
 It is admitted on all hands that larg*e sums are paid 
 for the tenant-rig"ht. I cannot^ however^ help sus- 
 pecting* that the statements of the evil resulting* from 
 these payments — statements coming from one side- 
 are exaggerated. The small holders, who cultivate 
 with the spade and lime, do not in the present state of 
 their agriculture care to spend money upon their 
 holdings, and the money paid by them for tenant-rig^ht 
 is withdrawn from their deposits at the bank, or from 
 their hoards in the thatch, or some old stocking- : and as 
 to the larger tenants, some weig-ht should be allowed to 
 their own explanation as given to me by a substantial 
 farmer in Down. " It is not money,'' he said, ^' which 
 they would spend on their farms. It is money saved 
 up in other ways to buy a home." We have to bring* 
 these payments into harmony with the fact of Ulster 
 being the best cultivated part of Ireland. The problem 
 is one in which the calculation upon the elements 
 
 * Minutes of Evidence. H. L. 18G9. Q. 831. 
 
104 
 
 furnished by political economy must be corrected by 
 the introduction of moral elements, in order to bring- 
 out a result accounting* for all the facts. The amount 
 paid may lessen the tenant's capital, and in so far be a 
 force acting" ag-ainst agriculture. But the sense of 
 security purchased is a force on the other side, and the 
 resultant of the two forces is in favour of aofriculture. 
 After reading- the evidence of Mr. Russell — corrobo- 
 rated as he is by others — no one can doubt that the 
 power of purchasing" this tenant-right is an incentive 
 to frugality, and that its possession gives the tenant a 
 security which he values^ and under which he makes 
 improvements. He may pay highly, but he has 
 secured the protection, the want of which writers and 
 statesmen^ and generations of the people, have felt to 
 be the flaw of Irish tenure. 
 
 This security has been obtained not by means of 
 leases, but by the creation of a charge upon the land. 
 To this I ask attention. We cannot feel surprised 
 that almost every one who has approached the subject 
 and looked at Ulster tenant-right has asked, whether 
 it would not be possible to extend Ulster tenant- 
 right over the rest of Ireland. To extend Ulster 
 tenant-right pure and simple is impossible, because in 
 Ulster a conventional mode of valuing the tenant's 
 interest has been agreed upon; and in the rest of 
 Ireland, with a few exceptions perhaps, this is not so. 
 But the principle of securing a tenant by means of a 
 charge is applicable wherever a charge can be created. 
 And this charge can be created by the valuation of his 
 
105 
 
 equity arising* out of the permanent improvements he 
 may have made, alone or jointly with his landlord. 
 The value ascertained becomes his tenant-rig-ht charge 
 at the date of valuation. 
 
 But in g'oing' throug-h the tenantry of Ireland^ we 
 shall find many who have not improved their holdings, 
 or have improved them under circumstances which do 
 not raise an equity in their favour; tenants, for 
 example, whose rent has been lowered in consideration 
 of future reclamation, and who have consequently 
 received their compensation. It would upset the first 
 principles of contract to treat these tenants as having 
 acquired tenants' property or equitable rights. Ac- 
 cordingly every Tenant-Eight Bill has, in some form, 
 recognized that a tenant is not entitled to compensa- 
 tion for improvements made in pursuance of a contract 
 or in consideration of any reduction of rent allowed at 
 the commencement or any other period of his occupa- 
 tion. And where no compensation can be recovered no 
 tenant-right charge can be created. We must protect 
 these tenants b}^ other means, and protection may, I 
 think, be afforded them by converting a tenancy with- 
 out lease from a yearly tenancy into a tenancy for a 
 course of husbandry according to the custom of the 
 country. In this change we make the law follow facts, 
 and we carry out the principle by which tenancy at will 
 was formerly converted into tenancy from year to year. 
 Where the liberty of cultivation conceded by law to a 
 yearly tenant is abridged by au obligation to cultivate 
 with reference to a course of husbandry, he is fairly 
 
106 
 
 entitled as a correlative right to a tenancy of the duration 
 of the course.* 
 
 I suo'o'est the extension of tenant-rlofht on a real 
 basis in preference to compulsory leases^ not doubting^ 
 that the introduction of leases is the g-oal to be aimed 
 at^ but doubting- the wisdom of forcing- leases on the 
 countr}^ There are two obvious means of forcing- 
 leases : one by making- void all ag-reements not in 
 writing', and the other by enacting* that in the absence 
 of a written agreement a lease of an extended term 
 shall be presumed. Both means have been proposed 
 for Ireland ; but neither would really benefit the 
 tenant. The first lessens his security^ and the second, 
 by putting- the landlord and the law in antag-onism, 
 tempts the landlord to curtail the excessive protection 
 of the law by an express and harsher contract. It is 
 safer to try to arrive at leases through tenant-right. 
 Tenants with charg*es recognized by law will be 
 in a better position^ and more likely than at present to 
 enter into written ag-reements. Besides^ it is difiicult 
 to say whether the ^reat mass of the tenants of Ireland 
 desire leases. The only method of reconciling- the con- 
 flicting- statements is by supposing- that the more 
 intelligent and richer tenants desire them^ but that 
 many are indifferent, if not averse to them. In Ulster, 
 too, there is some fear of the effect of a lease upon 
 tenant-right. 
 
 This fear raises a point which must not be left un- 
 
 * This change has been suggested also by Mr. Caird. " The 
 Irish Land Question." 1869. P. 17. 
 
107 
 
 settled. It has generally been proposed that a new 
 lease — a lease^ at any rate, of some duration — should 
 be taken as satisfaction for any prior claims of the 
 tenant. I venture to sng-g-est that it is better not to 
 enact any presumption on the subject. If a tenant on 
 entering" into a lease holds a tenant-right charg-e^ and 
 he and his landlord ag-ree that he shall give up the 
 charge in exchange for a long term or lighter rent, 
 their agreement can easily be expressed. But there 
 seems no reason for enacting a presumption that the 
 tenant intends to sell his charge unless he says so. In 
 the long run it would probably be better for the land- 
 lord that the tenant should retain the charge, for it 
 would be a fund guaranteeing the landlord against loss 
 at the end of the lease. The landlord would be 
 in a position analogous to the present position of the 
 landlords of Ulster, to whom, according to Mr. Trench, 
 Ulster tenant-right as a money matter is a gain. 
 
 We have based the tenant-right charge on a valua- 
 tion. The question whether it would be better to value 
 and register tenant-right charges at once, or to recog- 
 nize the legal right now, and leave the actual amount 
 to be valued when occasion arises, as well as the choice 
 of the best machinery for valuation, are questions which 
 require a knowledge of Irish Policy and of the com- 
 parative fitness for the purpose of different branches of 
 Irish Administration, which it would be presumptuous 
 in me to affect, and questions, besides, lying beyond the 
 scope of these pages. One or two general principles of 
 valuation alone call for notice. Where tenant-right 
 
103 
 
 exists with the cognizance of the landlord^ either 
 avowed or to be implied in law^^ the amount paid with 
 the cognizance of the landlord is the measure of the 
 tenant's interest estimated as a charge. Where this 
 measure does not exist, those entrusted with the task of 
 valuation must proceed to estimate the value of the 
 improvements of the tenants. Nor would the task be so 
 difficult as might at first sight appear. The conviction 
 has become widely established that tenants have a moral 
 claim to compensation for permanent improvements, 
 and in many estates some value must have been set 
 upon the claim. In the expenditure spoken of by Mr. 
 Trench on the estates with which he is concerned, we 
 saw an entry headed ^^ Compensation for surrender of 
 tenements." The agents possess elements of calcula- 
 tion which it would be for the interest of the landlord 
 to bring forward. Without being too sanguine, we 
 might expect that on some estates the agent and the 
 tenants would settle by agreement tables of valued 
 interests ; and when the valuation has thus been 
 passed through the two sieves of tenant-right and of 
 agreement, the remaining cases of disputed facts 
 would be reduced to a number small in comparison 
 with the importance of the investigation. 
 
 Again. Is the valuation to be made on the basis 
 of the value of the improvements as they stand, or on 
 the basis of the value of the unexhausted improve- 
 ments ? The tenants answer. The value of the im- 
 provements as they stand. Most landlords, 1 believe, 
 in accord with the agricultural practice of England, 
 answer differently. 
 
109 
 
 Lord Dufferin shows that he feels the difficulty, for 
 he divides improvements into those which affix some- 
 thing* to the soil; separable in idea at least, as a house ; 
 and those which may be called manipulations of the soil. 
 To the latter he applies the notion of exhaustion. Ac- 
 cording* to this view drainage and ploughing* differ 
 merely in the difference of their furrows. The furrow of 
 the ploughman is remunerated by the crop of the next 
 season, while the furrow of the ditcher needs more 
 seasons for remuneration. But Lord Dufferin told the 
 Committee of the House of Commons that he allowed 
 his tenants the actual value of a house after an enjoy- 
 ment of even sixty years ; on the ground that its value, 
 if it is kept in repair, is nearly as great then as on its first 
 erection, and that it is not a self -compensating improve- 
 ment.* It appears to me that the notion of exhausted 
 and unexhausted improvements is not applicable as the 
 basis of calculation in valuing the past improvements of 
 Ireland, even if it be desirable to introduce the notion 
 for the future by express contract. The notion of a 
 tenant investing* in improvements with a view of re- 
 couping* himself, is taken from a state of society in 
 which the tenant has a market of investments open to 
 him and ag'riculture has become commercial. The 
 notion therefore may be supposed to form part of the 
 common intention with which in this stage of society 
 the landlord and the tenant contract. But this cannot 
 
 » Minutes of Evidence. H. C, 1805. Q. 991. Q. 1007. 
 This is the principle, not the exact words of the answers. 
 
110 
 
 be asserted absolutely of Ireland in the past. Taking-, 
 for instance, the barony mentioned by Mr. Trench as 
 converted b}^ the tenants from an alder plain into a 
 cultivated district, who would assert that the land- 
 lord, who left the tenants to make this reclamation, 
 and the tenants ^^ driven to extremities to support 
 themselves," contemplated investments to be satisfied 
 by being- replaced as the common intention of both ? 
 Who would even assert that the idea occurred to either 
 of them ? The tenants have supplied in this and other 
 similar instances their own labour and the labour of 
 their families in order to o-ain a livino- and to make a 
 home. We are in dang-er of borrowing* a notion from 
 one stag'e of society and applying* it to another. 
 Length of enjoyment may enter into the calculation 
 by way of deduction, as may enjoyment at a low rent 
 and other limitations ; but they are deductions not to 
 be absolutely presumed, but to be established as 
 matters of barg-ain by evidence. 
 
 The question has been much discussed, whether the 
 express consent of the landlord should be necessary to 
 found a claim for compensation for improvements. It 
 is a question which decreases in importance in pro- 
 portion as the S3^stem of joint improvements advances. 
 It is important chiefly to the small holder, who 
 reclaims at odd hours and by superfluous labour, and 
 who has difficulty in furnishing" a precise notice of his 
 labour. The agricultural customs of England, in 
 which the consent of the landlord is implied to some 
 operations of obvious advantage, suggest that a 
 
Ill 
 
 similar consent should be implied in Ireland, within 
 certain limits which mig-ht easily be defined. 
 
 One word more. The creation of a tenant-riofht 
 charg-e will limit an unfiiir increase of rent ; for it 
 opens the door for the law to enter and restrain an 
 increase of rent overlapping-, so to speak, the tenant- 
 rig^ht charg-e 3 and the law, in allowing* an increase of 
 rent, would measure, not by the momentary demand, 
 but by the averag*e rise in the value of land. Thus 
 would be securely welded the weak joint in the harness 
 of Ulster tenant-rig-ht. And at this point arbitration 
 mig-ht well intervene upon a definite legal basis, and 
 without vagueness and the substitution of the manage- 
 ment of the State for the management of the proprietors, 
 in order to protect the tenant-right charge, and to fix the 
 rent consistently with it, before the question of increase 
 assumes a litigious shape, and comes within the 
 jurisdiction of the ordinary Courts. And if the Boards 
 entrusted with this arbitration had jurisdiction also to 
 hear questions which the landlords and tenants agreed 
 to refer to them, they might expand into useful Courts 
 of Conciliation. Probabl}', among* the earliest ques- 
 tions referred to them would be the determination in 
 particular cases of what length of lease ought to be con- 
 sidered an equivalent for past or future improvements 
 of the tenant under the circumstances of the case. As 
 in the matter of valuation, so here also it would be 
 unbecoming in me to express an opinion as to the 
 department to which such Boards ought to be attached; 
 it is enough to say that the Boards muist be capable of 
 
112 
 
 doing* right on the spot cheapl}^^ and must be impressed 
 openly and deeplj^ with the stamp, not of tribunals of 
 litig-ation, but of tribunals of peace. 
 
 To sum up shortly. The equitable rig'hts which, 
 according- to the arg-uments in these pag-es, man}^ of 
 the tenants of Ireland possess, offer a basis for legisla- 
 tion. It becomes our object to protect these rights. 
 Two methods of protection present themselves, protec- 
 tion by way of leases and protection by way of tenant- 
 right. Tenant-rig-ht, as worked out by the people 
 themselves, has, thoug-h unrecognized by law, already 
 afforded partial protection to these rig-hts. By the 
 leg-islation now sug-g-ested, that tenant-rig-ht w^ould be 
 recog-nized in law, and by careful valuation converted 
 into a well-defined system capable of being* extended 
 and of being* adopted with or without leases. Leases 
 would be made eas}'', but not compulsory. For the 
 protection of all tenants, tenancy without lease would 
 be presumed to be tenancy for the customary course 
 of husbandry. To meet the g-reat difficulty, that 
 customs of the country do not grow spontaneously in 
 Ireland as in England, the Courts would have juris- 
 diction sufficient to protect every future equity. And 
 in the hope of removing* causes of dissension between 
 landlords and tenants. Boards of Arbitration would be 
 at hand to value and deal wdth tenant-rig*ht, and to 
 adjust the rents due to landlords in accordance with 
 it. 
 
 Such are the conclusions to which we are led, and 
 such is the help towards dealing* with the past and 
 
113 
 
 leg-islating" for the future afforded us by placing^ the 
 facts of Irish tenure by the side of the principles or 
 decisions of English law, and to this, perhaps tedious 
 and narrow but, not unimportant, investigation, these 
 pag-es have been confined. 
 
 Still our survey would be incomplete if we left un- 
 noticed the proposal, grounded avowedly on the history 
 we have reviewed, for facilitating the acquisition of 
 the fee-simple by small holders. The proposal does not 
 supersede our investigations, for it does not effect a 
 settlement of the past or present relations of land- 
 lands and tenants, but seeks to get rid of the difficul- 
 ties by enabling Irish society, if so minded, to assume 
 a new form. I suppose no one doubts that there are 
 many tenants who have the means of purchasing, and 
 desire to purchase their holdings, if the purchase could 
 be made by instalments 3 and that there are many 
 landlords willing to sell if they were not prevented by 
 family settlements. This alone is a strong argument 
 for rendering purchase easy, and striking ofi' every 
 fetter which impedes the freedom of sale. But this is 
 not all. The physical peculiarity of the country, 
 the absence af coal, has made competition in many 
 manufactures difficult if not impossible for the Irish, 
 and has led them to look to the land. The history we 
 have reviewed culminates in these facts. Of the five 
 hundred and ninetj^-seven thousand holders of land in 
 Ireland in 1866, very nearly two-thirds held between 
 five acres and fifty j more than half held between 
 
 I 
 
114 
 
 five acres and thirty ; and far more than a quarter 
 held between five acres and fifteen.* Mapped out 
 before us lies a country of small holdings. The dis- 
 cussion^ as far as Ireland is concerned, whether larg^e 
 farms or small farms are most productive, is as un- 
 practical as a schoolboy's theme^ comparing* the 
 governments of Athens and of Sparta. For us the 
 question is^ Under what tenure should small farms be 
 held in Ireland so as to produce most prosperity and 
 happiness? No one can venture to say that small 
 leaseholds are necessarily more conducive to prosperity 
 than small freeholds^ especially when there are elements 
 of alienation between the landlords and the tenants of 
 the leaseholds. It must be a matter of experiment 
 to be tried by the people. Our experiments upon 
 tenure have not proved successful j it is worth while 
 helping them to try their own. Failures they will 
 make^ many and bitter ; but the failures will teach them 
 lessons and inflict natural penalties upon the lazy, the 
 feeble, and the embarrassed; and landlords will be 
 spared from being regarded as ministers of eviction 
 and forced emigration. Land-jobbers will spring up ; 
 though the protection of tenants' property will put 
 some limit on their illegitimate profits. This is the 
 dark side. There is a bright fc3ide. Legislation with 
 this object cannot fail to obliterate the traditions of past 
 conquest. Legislation with this object will be in accord- 
 ance with, and bring into play, the love of country, the 
 most enduring and one of the noblest of Irish ideas. 
 * Thorn's Almanack, 1869, p. 854j. 
 
115 
 
 When we have protected property acquired in the past, 
 and enabled the people to acquire new property in the 
 future, we may hope that at the end the vision will 
 come and not tarry, which King- James the First and 
 his leg*islator8 wrote on the tables of their law, but saw 
 not, and every g-eneration since has waited for and none 
 has seen; and that the uniting- of the King-doms of Eng-- 
 land, Scotland and Ireland under one Imperial Crown 
 will bring- to Ireland the happiness which it has 
 broug-ht to Eng-land and to Scotland. 
 
 2, Haecouet Buildings, Temple. 
 January^ 1870. 
 
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